
    James E. Wood, Respondent, v. The Brooklyn City Railroad Company, Appellant.
    
      Negligence — a passenger riding upon the side step of a crowded open street car injured by a truck backing onto him — duty of the motorman — a question for the jury — Laics of 1850, chap. 140, § 46.
    In an action brought to recover damages resulting from injuries caused by the alleged negligence of the defendant, a street railway company, it apjieared that the plaintiff was riding on the step which runs along the side of an open street car, the car being crowded, and as the car proceeded, a team of horses drawing a truck was being watered at a trough at the curb, the team and truck standing diagonally across the street, leaving a space which, at the time the motorman approached and sought to run his car through it, was sufficiently wide for the car to have passed without injury, hut the evidence tended to show that the truck was hacked somewhat while the car was passing, and as the car passed the plaintiff was struck by the end of the truck and was injured.
    Held, that the question of contributory negligence should have been submitted to the jury;
    That, as it was a commonly-known fact that horses, after drinking, are in the habit of hacking away from the trough, and as the motorman was hound to consider the fact that passengers were riding on the side step, there was such a reasonable liability of collision as to require the submission to the jury of the question whether it was negligent for the car to have proceeded;
    That the provision of the General Railroad Law of 1850 (Chap. 140, § 46), that a railroad company should not he liable for injuries received by passengers while riding on the platform of a car, did not apply to street railroads;
    That it was not negligence per se for a passenger to ride upon the side step of an open street car when the car was so crowded that there was no room for him within the car.
    Appeal by the defendant, The Brooklyn City Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 8th day of February, 1896, upon the verdict of a jury rendered .after a trial at a Trial Term of said court, and also from an order entered in said clerk’s office on the 13th day of February, 1896, denying the defendant’s motion for a new trial made upon the minutes.
    
      Morris & Whitehouse, for the appellant.
    Elliott, Jones, Breckinridge & Dater, for the respondent.
   Cullen, J.:

This is an action to recover damages for pei’sonal injuries. The plaintiff entered as a passenger upon an open car of the defendant, which was so crowded that he was obliged to ride on the step that runs along the side of that class of cars. As the car was proceeding on its course along Klatbush avenue, a team of horses, drawing a truck, was being watered at a trough along the curb. The team and track stood somewhat diagonally in the street, the heads of the horses being at the trough and the rear end of the truck further out in the camageway. As the car passed the track the plaintiff was struck by the tailboard of the truck, knocked to the ground and injured. While one of the witnesses for the plaintiff testified that the track did not move when the car was passing, the weight of the evidence tends to show that the truck was backed somewhat during that time. The motorman testified that the truck backed, but did not state for what distance. The conductor testified that there were three or four feet between the car and the truck. One of the witnesses for the defendant said the truck went back a couple of feet, and another that “ it did back a little.” At the close of the evidence the defendant moved to dismiss the complaint, both on the ground of the contributory negligence of the plaintiff and that no negligence had been established on the part of the defendant. The motion was denied and the defendant excepted. The denial of this' motion presents the only question to be considered on this appeal.

The contributory negligence of the plaintiff was a question for the jury. In Vail v. Broadway R. R. Co. (147 N. Y. 377) the Court of Appeals definitely decided that the provision of the General Railroad Law of 1850 (Chap. 140, § 46), that the company should not be liable for injuries to passengers while riding on the platform of a car, did not apply to street railroads. In McGrath v. Brooklyn, Queens Co., etc., R. R. Co. (87 Hun, 310) it was decided that riding on the side steps of the cars, where the cars were so crowded as not to permit the passenger to obtain a place within them, was not negligence per se. To the same effect are Clark v. Eighth Ave. R. R. Co. (36 N. Y. 135); Ginna v. Second Ave. R. R. Co. (67 id. 596); Nolan v. Brooklyn City & Newtown R. R. Co. (87 id. 63).

We think also that there was evidence tending to show negligence on the part of the defendant, and that it was proper to submit that question to the jury. It may be conceded that, at the time the motorman sought to run his car past the standing truck, there was room enough for the car to have passed without striking the truck, but this does not necessarily establish that the motorman was free from fault. He was aware or should have been aware of the crowded condition of his car and that passengers were riding on the side steps. He was also bound to consider the possibility of at least slight movement in the position of the truck. The horses -were being watered, and it is said to be a common fact that horses, as they have finished drinking, naturally back from the trough. One of the witnesses testifies that such was the case at the time of this collision. Therefore, if the condition of the defendant’s car or the position of the truck was such as to apprise the motorman that there was a reasonable liability of collision, even though it might be occasioned by the movement of the truck, it was negligence on his part to have proceeded. The case, in this respect, seems to fall within the principle of Seidlinger v. Brooklyn City R. R. Co. (28 Hun, 503) and O'Malley v. Met. Street Railway Co., decided by this court at the April term (3 App. Div. 259). In the latter case a passenger was struck by the end of boards, carried in a vehicle which had been proceeding in advance of the car and then turned out of the tracks. It was claimed that the vehicle had completely cleared the track and subsequently backed on the car. We there held : “The proof showed that a due regard for existing circumstances called upon the driver to consider the liability of the wagon to be cut off in its passage on the narrow street, and forced back down the grade, which would inevitably bring it in contact with the car.” That rule is equally applicable to the case at bar. The driver was bound to consider not only the existing position of the truck in relation to the car, but also the probability of that position being, changed, so as to endanger the passengers.

The judgment and order appealed from should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  