
    BYRNES v. INTERURBAN ST. RY. CO.
    (Supreme Court, Appellate Term.
    June 22, 1903.)
    1. Negligence—Sufficiency of Evidence.
    Mere proof of defendant’s negligence, without any evidence showing freedom from contributory negligence, will not sustain a recovery.
    Appeal from Municipal Court, Borough of the Bronx, Second District.
    Action by William L. Byrnes against the Interurban Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.
    Argued before FREEDMAN, P. J„ and GILDERSLEEVE and MacLEAN, JJ.
    Henry A. Robinson, for appellant.
    Cornelius J. Early, for respondent.
   PER CURIAM.

The plaintiff’s driver, in of a two-horse truck, was crossing Lexington avenue from the east to the west at 128th street, when a collision occurred between the car and the truck or the horses attached thereto, and this action is to recover damages therefor. The truck was in charge of the plaintiff’s driver, who was the only person on the truck at the time. Several witnesses were produced on the part of the plaintiff, who saw the occurrence, but the driver was not sworn, and the only excuse given was that he had been subpoenaed and had failed to appear, and the plaintiff proceeded to trial without his testimony. Although it may be said that from the testimony of plaintiff’s witnesses the court might be justified in finding that the defendant was guilty of negligence, there is no evidence in the case whatever to show whether or not the driver took any precautions to avoid the accident, or was free from contributory negligence himself. This requires a reversal of the judgment.

Judgment reversed. New trial ordered, with costs to the appellant to abide the event.  