
    Rebecca Feingold, Appellant, v. The New York City Railway Company, Respondent.
    (Supreme Court, Appellate Term,
    February, 1908.)
    Street railways — Operation — Actions: Sufficiency of evidence — Collision with vehicle; Contributory negligence: Questions for jury.
    In an action against a street railway company to recover damages for personal injuries sustained by a collision between the wagon in which plaintiff was being driven and defendant’s ear, where-it appears by the testimony of the driver of the wagon that he saw a car standing at the street corner and that, as he started to cross the track, the car started up and came on with great force and speed and struck his wagon, and that, although plaintiff was riding in his wagon, he was not employed by her but was taking her to market to buy goods which he expected to deliver for her, and it does not appear that plaintiff had any control over" the driver, the case should have been submitted to the jury and it was error to dismiss the complaint.
    Appeal by the plaintiff from a judgment of the City Court of the city of New York dismissing the complaint, and also from an order denying plaintiff’s motion for a new trial.
    Jacob Gordon, for appellant.
    James L. Quackenbush (Bayard H. Ames, of counsel), for respondent.
   Per Curiam.

On August 10, 1904, at lialf past three in the morning, plaintiff was on a wagon which was being driven by one iSchwartzberg through Fourth street in a westerly direction towards (Third avenue. When the wagon was being driven across Third avenue it was struck by defendant’s car, and plaintiff received injuries for which she here seeks to recover. At the end of plaintiff’s case the court dismissed the complaint. Plaintiff appeals. Inasmuch as the complaint was dismissed on plaintiff’s evidence alone, that evidence is entitled not only to belief but to all favorable inferences that may reasonably be drawn therefrom. Schwartzberg, the driver, swears he looked on both sides before crossing the track, and saw a car standing at the corner of Third street; that, as he started to cross, the car started up and came on with great force and speed and struck the hind wheel of the wagon, causing the damage complained of. He says, on cross-examination, that he was not in the employ of plaintiff. His testimony is as follows: e< Mrs. Feingold did not hire my wagon that day. She did not hire me. She did not work for me but for herself. She had a store. She did not hire me to take her to the market. I took her to the market, and she brought some goods and she gave me the expressage on the wagon. I took her to the market to get the order she was to give me. I delivered the goods for her. She was sitting inside the wagon. I was driving the wagon.” There were four people in the wagon, the driver, the plaintiff, one Meyer Schreidman and one Samuel Schreidman. They all give the same version of the accident. Only the driver states that “ the people in the wagon ” wanted him to hurry, • and he did not want to hurry.” The plaintiff appears to have had no control whatever of the driver; and, even if the accident resulted from the concurrent negligence of the driver and the defendant, there urns no contributory negligence on her part. It seems to us that the case should have been submitted to the jury.

Present: G-ildersleeve, Seajbury and Gerard, JJ.

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