
    Mary E. Kiley, Respondent, v. The New York City Railway Company, Appellant.
    (Supreme Court, Appellate Term,
    January, 1906.)
    Street railways — Operation — Collision with vehicles — Contributory negligence — When freedom from not established.
    Where the principal witness for the plaintiff, who was seated by the side of the driver of a van, testifies that, as they were proceeding south, he looked back and saw a south-bound car about two hundred feet away approaching rapidly; that, after continuing in the sa,me direction for a distance which he cannot state, they turned east, and, when the van was three-quarters of its length across the track, it was struck by the car; and, where the driver is not produced nor any other witness who can testify with more certainty as to how far he proceeded, after being told of the approaching car, before turning to go upon the tracks, the testimony is insufficient to show that the driver was free from contributory negligence.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, seventh district, borough of Manhattan.
    William E. Weaver, for appellant.
    Philip J. Britt, for respondent.
   Dowling, J.

While it may well be said that, from the testimony given in this case, the defendant is shown to have been guilty of negligence, the testimony does not show that the plaintiff’s driver was free therefrom. The accident occurred at or near the middle of the street, where the rights of the parties were unequal, the defendant having a superior right of way. The principal witness for the plaintiff was a person who first claimed to have been the driver, but who, it subsequently appeared, was seated at the left side of the driver. He testified that a large, covered, two-horse furniture van was being driven south, along the west side of Third avenue, between Thirty-eighth and Thirty-ninth streets; that, before reaching the middle of the block, they observed the roadway obstructed by other vehicles; that the witness then looked back and saw a south-bound car about 200 feet away and approaching rapidly; that they continued driving south, for what distance he is unable to state, and then, turning to the east, had got about three-quarters of the length of the van across the track, when it was struck by the car. The driver of the van was not produced, nor his absence accounted for, and. there is no other witness in the case that presents the situation as any more favorable for the plaintiff. This testimony is insufficient to show that the driver of the van was free from contributory negligence. Some testimony should have been given tending to show how far the driver proceeded, after he was told of the approaching car, before he turned to go upon the track. Lazar v. New York City R. Co., 94 N. Y. Supp. 9.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

Scott and Blanchard, JJ., concur.  