
    Stephen McFarland, Respondent, v. The Third Avenue Railroad Co., Appellant.
    (Supreme Court, Appellate Term,
    October, 1899.)
    negligence — Paramount right of street railroad to use its roadbed between intersecting streets.
    Between intersecting streets a street railroad corporation has a paramount right to the use of that portion of the roadway upon which its tracks are located; and where its motor car, provided with a headlight, lighted internally, and proceeding at a not excessive rate of speed, collides, at night, between streets, with a wagon whose owner and driver is attempting to cross the track, the latter can recover no-damages where he fails to prove that the operators of the car were in any manner negligent.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court, first district, borough of Manhattan.
    
      Hoadly, Lauterbach & Johnson, for appellant.
    John Callahan, for respondent.
   Febedmak, P. J.

The plaintiff brought this action and obtained a judgment for damages to his wagon, sustained in a collision with a car of the defendant, caused by the alleged negligence of the defendant’s servants.

The only evidence to support the contention of the plaintiff is that of himself and one Thomas Lally, who was riding with him' at the time the accident occurred.

Their testimony fails to show any negligence on the part of the defendant.

About 11:30 p. m., on June 4, 1898, the plaintiff and his companion were driving down Third avenue, on the east side, and when a short distance below Twenty-fourth street, turned west, in an attempt to cross the track of the defendant. They testify that before endeavoring to cross they looked up and down the street, that they saw a downtown car, but did not see any uptown car, that when a little more than half way across the uptown track they were struck by a car going north and the injuries to the vehicle were received for which the plaintiff had a judgment.

It appears that the avenue was well lighted and that the car had a headlight, and was lighted inside.

The collision occurred at a point where the defendant had a paramount right to the use of that portion of the roadway upon which its tracks were located. Adolph v. C. P. N. & E. R. R. Co., 76 N. Y. 530; Fenton v. Second Ave. R. R. Co., 126 id. 625; Rosenblatt v. Brooklyn Heights R. R. Co., 26 App. Div. 600.

There was no testimony going to show that the car was going at an unusual or excessive rate of speed, nor that any of the employees in charge of the car saw the plaintiff in time to have stopped the car.

The only carelessness that can be alleged against the defendant is the fact that the gripman did not stop the car in time to avoid the collision.. Such negligence must be predicated upon inference, as there is no direct testimony to that effect.

If the plaintiff, who was driving, looked and did not observe the approach of the uptown car, no inference can be drawn that the servants of the defendant, in charge of the car, observed the plaintiff in time and neglected to stop the car before it struck the wagon.

No greater duty in that respect is imposed upon the defendant than is required of the plaintiff, especially in view of the point where the accident occurred.

As proof of negligence, on the part of the defendant, is essential to maintain the aation, and the record being barren of such proof, the judgment must be reversed.

This failure of proof, in respect to the alleged negligence of the defendant, renders unnecessary any reference to the claim made (by the appellant of contributory negligence) on the part of the plaintiff.

MacLean and Levbnteitt, JJ., concur.

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