
    Martin M. Moore, Respondent, v. Rochester Railway Company, Appellant.
    Fourth Department,
    November 17, 1909.
    Bailroad—rights of way of street cars and vehicles — rule where street meets but does not cross other street.
    Where a vehicle comes out of a street which meets but does not cross another street and must cross the tracks of a car line in order to reach the side of the street required by the rule o£ the road, neither the vehicle nor the street car has a paramount right of way, but each must proceed in a reasonable and cautious manner so as not to interfere with the rights of the other.
    Appeal by the defendant, the Rochester Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 23d day of February, 1909, upon the verdict of a jury for $994.43, 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.
    
      Harris, Havens, Beach di Harris and W. A. Matson, for the appellant.
    
      James M. E. O'Grady, for the respondent.
   Williams, J.:

The judgment and order should be affirmed, with costs.

The action was brought to recover damages for negligence. There was a collision between one of defendant’s street cars and an express wagon driven by plaintiff, at a place where Marietta street entered hut did not cross St. Paul street, in the city of Rochester, N. Y. The plaintiff drove out of Marietta street and crossed the tracks of defendant running along St. Paul street, in order to reach the side of the latter street that the rule of the road required him to drive upon. The ear was approaching so rapidly that it could not be slowed down sufficiently to avoid the collision, and the plaintiff was thrown out and injured.

There was conflicting evidence as to the alleged negligence of the plaintiff and the motorman. These questions were submitted to the jury. The defendant claims there should have been a nonsuit on the ground of contributory negligence. We think not, that the question was one to be passed upon by the jury. The main ground of error alleged by the defendant, however, is in the charge of the court. A request was made that the jury be instructed the defendant had the paramount right of way, while passing Marietta street, at the time of the accident. This the court refused, and made some comments, explaining his reasons for such refusal, which seem to be contrary to the rule laid down in the Second Department. It seems to be well settled that where the two streets cross each other, the car and the vehicle have equal rights of way, the right of neither is paramount. In other parts of the street along which the car passes the car generally has a paramount right of way. The reason for these rules was very well stated by Judge Earl in O'Neil v. D. D., E. B. & B. R. R. Co. (129 N. Y. 180), viz.: “ As the cars must run upon the tracks and cannot turn out for vehicles drawn by horses, they must have the preference, and such vehicles must, as they can, in a reasonable manner, keep off from the railroad tracks so as to permit the free and unobstructed passage of the cars. In no other way can street railways be operated. As to' such vehicles the railways have the paramount right to be exercised in a reasonable and prudent manner. But a railway crossing a street stands upon a different footing. The car has the right to cross and' must cross the street, and the vehicle has the right to cross and must cross the railroad track. Reither has a superior right to the other. The right of each must be exercised with due regard to the right of the other; and the right of each must be exercised in a reasonable and careful manner, so as not unreasonably to abridge or interfere with the right of the other.”

The question here involved is whether the rule as to street crossings is applicable to a place where a side street runs to but not across the street along which the. car passes. Such was the condition here; Marietta street ran to but not across St. Paul street. It was necessary that the plaintiff should cross the track, so as to reach the further side of St. Paul street, along which the rule of the road required him to drive. If he had desired to drive along St. Paul street in the opposite direction, it would not have been necessary for him to cross the tracks to reach the side the rule of the road required him to proceed along. .

It was held by the Second Department, Appellate Division, that the rule as to street crossings was not applicable to places where streets run to but did not cross the street along which the car passed, but as to these latter places the car had the paramount right of way. (Hewlett v. B. H. R. R. Co., 63 App. Div. 423; Rutz v. N. Y. City R. Co., 107 id. 568.)

Ho particular reason was given for making the decisions in these two cases except reliance upon the language of Judge Earl, which we have quoted above. The reason there given for the rule at crossings that the vehicle has the right to cross, and must cross the tracks, is equally applicable to a vehicle coming out of a street which runs to but does not cross the street, provided it is necessary to cross the tracks in order to proceed along the side the rule of the road requires. In such case, as well as at a street crossing, the vehicle has the right to cross and must cross the tracks, and in such a case it should be held the same as at a street crossing, that neither the vehicle nor the car has a superior or paramount right of way in the street.

Such was the case here, and we think the instruction under these circumstances was entirely proper.

We think this case was properly disposed of, and that there should be an affirmance.

All concurred.

Judgment and order affirmed, with costs.  