
    Josephine Sauter, Respondent, v. International Railway Company, Appellant.
    Fourth Department,
    November 11, 1908.
    Railroad — negligence —passing vehicles on narrow driveway —- care required of motorman.
    Where the driveway beside the track of a street railroad is quite narrow, the motorman is required to use reasonable care in sounding the gong and in starting up the car while passing vehicles.
    Negligence may be found if he unnecessarily and violently sounds .the gong so-as to frighten a horse, or suddenly increases the speed of the car so as to be unable to stop it when a collision is imminent.
    
      Appeal by the defendant, the Intérnational Railway Company, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Erie on the 30th day of June, 1908, upon an order granted at the Erie Special Term, affirming a judgment of the Municipal Court of the city of Buffalo in favor of the plaintiff, entered on the 15th day of May, 1908, upon the verdict of a jury for $250.
    
    
      Dana L. Spring and Norton, Penney & Sears, for the appellant.
    
      Clifford Nichols, for the respondent.
    
      
       See Buffalo charter (Laws of 1891, chap. 105), § 457, as amd, by Laws of 1898, chap. 101, and rep. by Laws of 1908, chap. 387, §§ 2, 3, See, also, Buffalo charter, § 552, added by Laws of 1908, chap. 387.— [Rep.
    
   Williams, J.:

The judgment of the Special Term should be affirmed, with costs.

The action was brought to recover damages for persona) injuries alleged to have resulted from the negligence of the defendant. Plaintiff was out driving with a young man, with a horse attached to a runabout. While they were passing through a narrow street, in which the driveway beside the car track was quite narrow, one of defendant’s cars passed the rig in which plaintiff was riding. The front part of the car passed by safely, but the back steps struck the wheel of the runabout, and the plaintiff was thrown out and injured. The finding of the jury that the plaintiff aud the young man driving with her were free from contributory negligence was justified by the evidence.

As to the negligence of the defendant the court left two questions to the jury, whether the speed of the car was increased unnecessarily before it had fully passed the rig, and whether the gong of the car was sounded unnecessarily, and the horse was thereby frightened. The jury was instructed to find whether in either of these respects the defendant was guilty of negligence which caused the accident and injuries. This instruction was approved by the court at Special Term, particularly with reference to the sounding of the gong. The trial court and the Special Term were correct as to the law. While the motorman had the right to move his car, along past the rig and to sound the gong as he was about to cross an intersecting street, yet, considering the narrow space in which the rig was placed and its necessarily close proximity to the car, the motorman was called upon to exercise reasonable care in the sounding of the gong and in starting up his car so as not to endanger the persons in the rig. If, disregarding this duty, he Unnecessarily and violently sounded 'the gong and frightened the horse, and suddenly increased the speed of his car, so as to be unable to stop it if there was likely to be a collision, he was guilty of negligence, and if the accident resulted therefrom the defendant might be held liable therefor, and for the injuries to the plaintiff.

In the case of Mayer v. N. Y. C. & H. R. R. R. Co, (29 N. Y. St. Repr. 183; 55 Hun, 608, in mem.; affd., 132 N. Y. 579) Mr. Presiding Justice Van Brunt Considered the rights and duties of steam railroads and' travelers on the. streets with vehicles, and among other things said: “ The railroad company having the right to use the whistle could not be charged with negligence in its use, unless there had been an improper or abusive exercise of that right. • The jury could not find that the defendant was guilty of negligence in blowing this whistle, unless there had been, as • already stated, an improper exercise of this right under all the circumstances which surrounded the defendant in the operation of its road at this particular locality. This question was distinctly presented to the jury, and they were instructed that iri case the defendant had abused the right to sound the whistle, that is) had sounded it in an improper place, too frequently, unnecessarily, or improperly, because of tile nature of the locality through which their track ran and the road was operated, they might find the defendant guilty of negligence. The jury certainly had no right, unless some of these elements were present showing an abuse by the defendants of the right which they had, to find the defendants guilty of negligence. And it Was only because some of these elements showing an abuse of the right might have been found to be present, that the court submitted the question at all to the jury.” This is a reasonable rule, was approved by the Court of Appeals, and I think has never been changed since it was laid down in 1890. I do not think the late case of Hoag v. South Dover Marble Co. (192 N. Y. 412) suggests any different rule. That case is clearly distinguishable.

There was a close question of fact in this case whether there was negligence in either of the respects charged, and the accident resulted therefrom. The defendant claimed there was no violent sounding of the gong and no sudden and rapid increasing of the speed of the car, but the accident was caused by the driver turning his horse’s head away from the car after the front part had passed the rig; that the front wheel was thus turned, so that the rear steps of the car struck it. It is argued quite persistently that the verdict .in this respect was contrary to the evidence, against the weight thereof, and should for that reason be set aside and a new trial granted. I think not. . The verdict is small. A new trial would not be likely to aid the defendant,, and inasmuch as the jury is to have the last say anyway, I think the case better be affirmed now.

All concurred.

Judgment affirmed, with costs.  