
    George Kalb, Respondent, v. Agnes F. Redwood, Appellant.
    Second Department,
    November 17, 1911.
    Motor vehicles—negligence — injury to trolley conductor by automobile — facts justifying recovery — rule of the road.
    Action to recover damages for personal injuries received by the conductor of a trolley car who while crossing the road at night to operate a signal light was struck by the defendant’s automobile. The plaintiff testified that, alighting from the right-hand side of his car, he passed behind it and, having seen the defendant’s automobile coming from behind, continued to cross the left-hand side of the road to reach the signal, assuming that the defendant when he overtook the car would pass to the right instead of to the left. On all the evidence, held that a judgment for the plaintiff should be affirmed.
    The law of the road is not such an absolute rule that the plaintiff, was bound to presume' that the defendant on overtaking the trolley car would pass to the left rather than to the right, regardless of the fact that the road on the right hand afforded a better passage.
    Burr, J.; and Jerks, P. J., dissented, with opinion.
    
      Appeal by the defendant, Agnes F. Redwood, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 30th day of September, 1910, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.'
    
      George L. Shearer [Williamson Pell with him on the brief], for the appellant.
    
      George V. S. Williams [Nathaniel S. Corwin with him on the brief], for the respondent.
   Woodward, J.:

The complaint alleges negligence on the part of the defendant in the operation of an automobile, by reason of which the plaintiff was knocked down and seriously injured. The verdict of the jury is in favor of the plaintiff, and the learned trial justice has denied a motion for a new trial.

The plaintiff’s story of the accident, which has been accepted by the jury, is that he was a conductor upon a trolley car running from Jamaica to Far Rockaway; that this Was a single-track line, with switches at intervals; tliat at each of these switches the road was equipped with signal lights, attached to the trolley poles at the side of the'road, and that it was the conductor’s duty to leave his car at these switches, turn on the light, indicating that he had passed the switch, and continue on his trip; that at the point of the accident the car had slowed down; that the conductor stepped from the middle right-hand side of his car and started to run around the rear end. of the same, to reach the signal light on the pole at thé left-hand side of the road opposite the car; that as he faced to the rear he saw defendant’s car in the rear of the trolley car at a distance of about twenty-five feet;'that he passed in the rear of the trolley car, thinking the defendant would drive to-the right hand side of the trolley car, and crossed diagonally toward the signal light, keeping his eye upon the same to see if the car coming in the opposite direction had changed the signal, and that when about five or six feet from the trolley car he was struck by the motor car, running at the rate of six to ten miles an hour, and injured.

It is urged that the facts as testified to by the plaintiff and his witnesses constituted contributory negligence as a matter of law, and we are asked to overturn the verdict of the jury upon this point, and upon the further suggestion that there is a failure to show negligence on the part of defendant in the operation of the motor car. It appears that the roadway was sandy and rough; that the car had been in the company of the trolley car for some distance, passing the trolley car when the latter stopped to accommodate its passengers, and dropping to the rear when the trolley car got under way; that the conductor had stopped and made these signal changes several times, and that at the time of the accident the defendant was some distance in the rear of the trolley car when the conductor got upon the ground on the right-hand side of the car. The plaintiff, who evidently is not accurate in estimating distances, says it was twenty-five feet' away when he reached the ground from the center of his car, though he apparently modifies this and says that he was running toward the rear and was six or eight feet from the rear of his car when he saw the motor car twenty-five feet away, but the undisputed testimony of witnesses is that the plaintiff had reached a point over the switch, track and into the traveled way some five or six feet when he was struck, so that it must have been a much longer distance away than the plaintiff testifies when he first saw it. The motor car appears to have been directly behind the trolley car, and the plaintiff’s explanation that he thought the motor car was going to pass to his right is not an unreasonable one, when we take into consideration other portions of the testimony, to the effect that there was not room for passing on the switch side. It is entirely clear that the plaintiff passed between the motor car and the trolley car, if the plaintiff got out from the right-hand side of the car, and he must have been directly within the line of vision of the defendant’s driver, and if defendant's car was only running at the rate of ten miles an hour in a sandy, rough road, the jury might very properly find that it was negligent for defendant’s driver not to have' discovered the plaintiff’s danger and avoided it by stopping the car. The law of the road is not such an absolute rule that the plaintiff was bound to presume, that the defendant would pass a trolley car upon the left-hand side, regardless of the conditions existing at a particular point, and it may be gathered from the evidence that the right-hand side of the trolley track afforded the better side for passing, as the left-hand side was occupied by a switch track, and the plaintiff says there was no-room to pass on that side. If he looked and saw that he had room to pass around the rear end of the trolley car, and had a right to assume that the motor car would pass to the right-hand side, it was not contributory, negligence, as a matter of law,, for the plaintiff to keep his eyes upon the signal light and to run across the roadway to give his signal without- paying further attention to the driver of the motor car. A man in the discharge of his duties has a right to rely in some measure upon other people' discharging their duties toward him, and it was a proper question for the jury whether the plaintiff, who was in full view of the chauffeur, had exercised that degree of care which the circumstances' demanded. The plaintiff was busy; he was looking out for the safety of the operation of his car, and, as he was in full view of the defendant’s driver all of the time while he was passing over two of -the trolley tracks, with the intervening space between, and some little distance besides, he might safely assume that the chauffeur would take the ordinary -precautions not to run him down, and especially might this be true if the conditions were such that the plaintiff had a right to expect that the defendant would pass to the right of the trolley car in passing. There was a point about which honest men might differ, and it was peculiarly a question for determination .by the jury. We ought not to disturb-the verdict.

The judgment and order appealed from should be affirmed.

Hirschberg and Rich, JJ., concurred; Burr, J., read for reversal, with whom Jenks, P. J., concurred.

Burr, J. (dissenting):

For injuries sustained by being struck by defendant’s automobile, plaintiff brought this action and has recovered a judgment for $2,639.28. Independently, of the question whether the verdict was against the weight of the evidence, I think that the judgment should be reversed for the reason that plaintiff’s testimony affirmatively establishes his-contributory negligence. Plaintiff was a conductor in the employ of the Long Island Electric Railroad Company, which operated a single-track trolley road from Jamaica to. Ear Rockaway. He was employed on an open car. When the car reached a switch it was his duty, as he testified, to get off and “turn a light to signal the car at the switch ahead I was coming through so he wquld stay at the next switch and wait until I got there.” Plaintiff’s car came to a standstill on the right of the street going to Far Rockaway. The light and the switch that was pulled to turn on the light were at the left-hand side of the road. Plaintiff got off the right-hand side of the car at about the middle thereof. He walked to the rear of the car, a distance of thirty feet, and started to cross the space between it - and the light switch. He had proceeded about ten or twelve feet from his car when he was struck. Beforé starting to cross the road he saw the automobile about twenty-five feet in the rear of the car coming toward him. His testimony is a little uncertain whether this was as he alighted or when he was in the rear of his car. But there is no doubt that he saw it coming toward him from that distance. He did not look at it again, but fixed his eyes on the light, and while he was running . across the road he was struck. He says that he did not look toward the automobile again because he thought it would turn and pass his car on the right-hand side. To quote his own words: “I crossed the track, crossed right in front thinking he was' going to take the right-hand side. I was running to pull my light.” There was no evidence that the driver of the automobile gave any sign indicating his intention to pass to the right, and the rule of the road required the automobile to pass to the left of the car and the court so charged the jury. Plaintiff attempted to claim that the space between the left-hand side of his car and the switch was too narrow for the automobile to pass. The fact that it did pass upon that side demonstrates either that he was careless in his observation or inaccurate in his testimony. ' Beyond that, it i^ clear that there was room upon that side for the switch track upon which the car coming from the other direction could pass. If there was-room for that, there was room for the automobile. Giving to plaintiff’s testimony its fullest effect, it remains clear that, seeing the automobile approaching his car some twenty-five feet in the rear thereof, he heedlessly ran directly into its path without looking to- see upon which side of his car it was about to pass.

Jenks, P. J., concurred.

Judgment and order affirmed, with costs.  