
    Constantine J. MacGuire, Respondent, v. The New York City Railway Company, Appellant.
    (Supreme Court, Appellate Term,
    February, 1907.)
    Street railways — Operation: Collision with vehicles — Contributory negligence; Actions — Sufficiency of evidence — Contributory negligence.
    In an action for injuries to plaintiff’s horses and carriage, caused by being struck by a street car while crossing the track, where the plaintiff’s coachman testifies he did not see the ear until he was about on the track ready to cross; that he was looking out for traffic coming the other way; that there was nothing on the track to prevent the motorman from seeing the carriage, — nothing ahead of the car, and the first the witness knew of the car was just before it hit him, the coachman appears to have been guilty of contributory negligence.
    And, when plaintiff saw the car rapidly approaching a block away, and his carriage stopped until a car going in the opposite direction passed, and he must have known the latter car would somewhat obstruct the view of the motorman on the ear that struck him, but said nothing to his driver and ran the risk of getting over before the car struck him, he has failed to establish his freedom-from contributory negligence.
    Appeal by the defendant from a judgment of the Municipal Court of the city of New York, seventh district, borough <,f Manhattan, rendered in favor of the plaintiff.
    
      William E. Weaver, for appellant.
    Joseph H. Fargis, for respondent.
   Gildersleeve, J.

The plaintiff and a Dr. Handel were sitting on the back seat of plaintiff’s victoria, which was drawn by two horses, driven by a coachman, along 20th street towards Broadway. There was an obstruction in front of them which caused them to slow up, and when the obstruction moved away the carriage proceeded slowly to cross Broadway. • The coachman waited for a southbound car to pass and then moved slowly across. A northbound car came along and struck the forepart of the carriage, causing damage to horses and carriage, for which the justice allowed plaintiff $500. It is not contended that this amount is excessive, if defendant was liable at all. The defendant’s appeal is based on the claim of contributory negligence. The plaintiff’s coachman testifies thus: “ Q. Did you see any north bound car? A. I did not see the north bound car until the horses were about on the track, and we were ready to cross the east side of the tracks. * * * I was looking out for the traffic coming from the other way, whether there were any vehicles on the other side of the track. I did not see the car until it was right against the horse. Q. Was there anything on that track to prevent the motorman from seeing your carriage ? A. Ho, sir. There was nothing ahead of the north bound ear. Q. (on cross examination) When this car hit you it was almost the first you knew that there was a car coming from the south-—just before it hit you? A. Tes, sir. That is the first I Imew of it.” It would seem from the testimony that plaintiff’s servant drove right in front of the north bound car, without looking at all to see if -any car was coming from the south, or taking any precaution whatever for his safety, or that of plaintiff and his horses and carriage, after stopping to let the south bound ear go by and before driving upon the north bound tracks. He says there was nothing ahead of the north bound car and nothing to prevent the motórman from seeing his carriage. He could, therefore, presumably, have seen the car before crossing the north hound track, and avoided the accident. It seems to us that, upon his own showing, plaintiff’s driver was guilty of contributory negligence. See Little v. Third Ave. R. R. Co., 83 App. Div. 330; Vonelling v. Metropolitan St. R. Co., 35 Misc. Rep. 301. Plaintiff himself claims he saw the north bound car rapidly approaching from Nineteenth street at which street it made no stop. Plaintiff’s carriage then stopped, as we have seen, until the south bound car had passed. It is urged by defendant’s counsel in his brief that plaintiff must have known that, by this time, the north bound car was pretty close at hand, and that the south bound car might, to some extent, obstruct the view of the motorman of the north bound car, so far as plaintiff’s carriage was concerned, and that plaintiff said nothing to his driver, but ran his risk of getting over before the car struck him. We ^.re of opinion that plaintiff did not satisfactorily establish his freedom from contributory negligence.

MaoLean and Amend, JJ., concur.

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