
    Benjamin Doctoroff, Appellant, v. The Metropolitan Street Railway Company, Respondent.
    (Supreme Court, Appellate Term,
    June, 1907.)
    Taking case from jury and nonsuit— Weight and sufficiency of evidence— In action against street railway for collision with vehicle.
    Street railways — Operation — Actions — Questions for jury — Negligence in collision with vehicle.
    Negligence—Contributory negligence—Imputed negligence—Negligence of driver not under control of person injured. ,
    In an action against a street railway company for injuries sustained by the collision of one of defendant’s cars with the wagon in which plaintiff was riding, where it appears that, upon the approach of the car from behind, the sound of its bell was heard and the driver immediately proceeded to get off the track on which he was driving but, before he could do so, the wagon was violently struck and plaintiff injured, there was sufficient evidence of negligence upon the part of defendant to submit to the jury and it was error to dismiss the complaint.
    And, where it appears that the plaintiff was the employee of the owner and driver and that he did nothing to control, direct or influence the conduct and action of the driver, contributory negligence on the part of the driver cannot be imputed to the plaintiff.
    Appeal taken by the plaintiff from a judgment of the City Court of the city of New York, dismissing the complaint at the close of the plaintiff’s case.
    Henry L. Slobodin, for appellant.
    Henry A. Robinson (Bayard H. Ames and Vine H, Smith, of eonnsel), for respondent,
   Platzek, J.

The action is to recover damages for personal injuries alleged to have been sustained by the plaintiff in consequence of a rear end collision betwen one of defendant’s south bound cars and a wagon in which plaintiff was riding. The plaintiff was not the owner of the team or wagon, but was only an employee of the driver. It was substantially proven on the trial that, on December 19, 1901, about 2 o’clock in the afternoon, plaintiff was riding in a wagon belonging to his employer, Oscar Lustig, who was driving the wagon, which was proceeding down town and at the time of the accident was on the defendant’s down town railway track on Eighth avenue, ETew York city; that the three men were sitting on the seat of the wagon; that, in the neighborhood of and between Seventy-fourth, Seventy-fifth and Seventy-sixth streets, the sound of a bell of a car behind was heard, and Lustig, the driver, immediately proceeded to turn his horses and wagon to the west side of the avenue, in order to get off the track and allow the car to pass; that, before the wagon had time to get off the track, it was struck violently by the car in the rear. It was shown that the wagon was on the tracks only two or three minutes, and for the distance of a block or so before the accident occurred; that on that day there was heavy snow on the ground; that the road was very slippery; that there were other wagons on the track in front of Lustig’s wagon when the accident occurred; that the horses and the front of the wagon were off the track when the ear struck the wagon in the rear, hitting the right rear wheel and upsetting the wagon. The defendant’s car struck the rear of the wagon with such force as to upset it and throw the three men to the street in the snow on the ground, with the wagon on top of them. Because of the plaintiff’s injury, he had to be assisted to his home. The plaintiff was entitled to the benefit of every fact in the evidence adduced by him and to all inferences warranted thereby. There is no evidence that the plaintiff looked for the car behind, or as to the speed of the car or that of the wagon. There is no direct proof as to the conduct of the motorman or the operation of the car, until immediately prior to the collision. There i§ a reasonable inference tba-t the motorman saw the wagon, evidenced hy the noise of the hell, which attracted the attention of the driver of the wagon. The defendant company had the paramount right of way over the portion of the street on which its rails were laid, but not such exclusive right to its tracks as to permit it to run into a wagon on its tracks heedlessly. There is no evidence that, when the plaintiff turned from the track at about the time of the collision, -the' car could or could not have been stopped in time to avoid the collision, when it became or should have become apparent to defendant’s motorman that there was danger of collision with the wagon, as the driver was leaving it. The driver was entitled to a reasonable opportunity to get off the track and to the exercise of reasonable diligence in the attempt to do so. There was no obligation on the motorman to take steps to stop the car until he saw or should have seen danger of collision, but it was the duty of the motorman to take notice of existing conditions. Did the motorman see the wagon, and was the bell given timely ^enough to enable the driver to leave the track with safety? The' testimony shows that the horses and the front part of the wagon had crossed and that the car struck the right rear wheel so forcibly as to upset it and precipitate the three occupants to the ground. Can it be said on the uncontradicted evidence here that the defendant’s servant in charge of the car was not negligent as matter of law, under these circumstances? As the testimony stood at the close of the plaintiff’s case, when the complaint was dismissed, there was more than a scintilla of evidence; in fact there was sufficient proof to submit to the jury the question whether there was or was not negligence on the part of the defendant. The testimony discloses that the plaintiff was not the owner or driver, but the employee of the owner and driver. Contributory negligence of the driver will not excuse the defendant, nor can it be imputed to the plaintiff. There is no proof whatever that the plaintiff did anything or attempted to do anything either to control, direct or to influence the conduct and action of the driver. If the plaintiff conducted himself with due care and the accident was caused by the negligence of the defendant’s motorman, the defendant cannot escape liability, even though the driver of the wagon was concurrently negligent. The record fails to disclose want of care on the part of the plaintiff, or that he was not alert to avoid injury. In Dailey v. Jour dan, 18 App. Div. 387, it was held that the negligence of a driver in attempting to cross a railroad track in front of an approaching- engine cannot be imputed to his companion, he having no control over'the driver. In the present case it must be remembered that the driver was the owner of the team and wagon, and that the plaintiff was his employee and did not control the action of his employer. In Demarest v. Forty-second St. R. Co., 104 App. Div., at page 505, Mr. Justice McLaughlin says: The rule has long been settled * * * that a third person who is injured by the negligence of two or more persons, he himself being free from negligence, may maintain an action against them jointly or severally to recover the damages sustained * * * and when such action is brought a defendant cannot successfully defend the same on the ground that the negligence of another contributed to the injury.” Scheib v. New York City R. Co., 115 App. Div. 578, is authority for the proposition that a person riding on a wagon, who conducts himself with care, can recover for an injury received in a collision with a surface car, caused by the negligence of the motorman, although the driver of the wagon was concurrently negligent; and the fact that the plaintiff was engaged in a common employment with the driver is immaterial, where there is no proof that he had any control over the ..wagon, or attempted to influence the driver.

It follows from the foregoing that the judgment appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event.

Gildersleeve and Seabury, JJ., concur.

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