
    Oliver T. Hewlett and Emma Hewlett, as Administrators, etc., of Townsend J. Hewlett, Deceased, Respondents, v. The Brooklyn Heights Railroad Company, Appellant.
    
      J'Negligence — proof of the speed of street cars at the place of an accident, six months thereafter—proof of the earning capacity of a gardener employing men and horses —paramount right of a railroad company in a street bisected but not intersected by another street.
    
    In an action to recover damages resulting from the death of the plaintiffs’ intestate, caused by a collision between one of the defendant’s street cars and a wagon driven by the intestate, proof as to the speed at which several cars of the ■defendant were operated at the point where the accident happened, on a day more than six months after the accident, is not competent evidence as to the speed of the colliding car, especially where it does not appear that the conditions present on the two days were in any respects the same.
    Where it appears that the intestate was a market gardener who owned and cultivated eighty acres of land and employed from one to four men, horses, wagons and farming implements in his business, proof as to the value of the loads of produce which he took to market is incompetent on the question of his earning ■capacity.
    
      Where a street bisects but does not intersect another street upon which a street surface railroad is operated, thus forming a cul de sae, the railroad company has a paramount right of way at the point of bisection, but such right must be exercised with a view to the use made of such cul de sac and the physical condition of the locality.
    Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Nassau on the 6th day of April, 1900, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 20th day of October, 1900, denying the defendant’s motion for a new trial made upon the minutes.
    
      John L. Wells, for the appellant.
    
      A. _ZY. Weller, for the respondents.
   Jenks, J.:

There are errors in the admission of testimony which require a reversal of this judgment. The action is to recover damages for the death of plaintiffs’ -intestate, resultant from a collision between Ms market wagon and a -car of the defendant, operated by it upon its 'street surface railroad on Myrtle avenue in the borough of Queens. About half after seven o’clock p. m. on March 2, 1900,. the plaintiff drove toward Myrtle avenue from Deboo place, and while turning into the former street the car came, into collision with the wagon, whereby the said intestate was cast down to his death. The complaint is that the car came with great speed up behind said wagon, and that the motorman carelessly, negligently and willfully, and without slacking speed, ran the corner of said car into the wagon rack of the decedent, There was testimony given by the several witnesses for the plaintiffs that the car traveled very •fast or at a high rate of speed. Thus the plaintiffs both pleaded and gave in evidence .excessive speed and a relative lack of due care in the control of the car as an element of the negligence of the defendant. The plaintiffs called one Thompson, who took certain measurements at the place of the accident on September 18, 1900, about a week previous to the trial. He was then asked this question: “ Q. Now, did you take the time of the cars coming from the point which he first could view the cars as they were coming up, did you take the time of the cars running there on the point up to the corner? A. Yes, sir. I took it seven times, I believe. Q. And how long did it take the cars, running from 200 feet or from that point where you could see the car, how long were, they running that distance?” [Objection as incompetent, immaterial and improper.] “ The Court: If you are prepared to show that the running time has not been altered then I will take it. By the Court: Q. When were these observations that you made ? A. Tuesday, September 18th. Defendant’s counsel: I object to it on the ground that it is incompetent, irrelevant and immaterial, and not evidence of the speed of this car on this night when this collision occurred. Objection overruled. Defendant excepts. Q. Now, what was the time running between that point where the first observation and where the car could be first seen to the corner ? A. Seven seconds at the least. I took the observation seven times — six or seven, and the lowest was seven seconds; the average was from seven to twelve seconds.” Motion was made to strike out this testimony, which was denied under exception. Proof that six or seven different cars ran a certain distance in respective periods varying from seven to twelve seconds in a certain part of September 18, 1900, is not competent evidence of the speed of a car over the same distance on March 2, 1900. The proof given shows that the cars' on September eighteenth, and within presumably a short period of that day, varied from seven to twelve seconds, and that, therefore, even within that short space of time there was no uniformity of speed. It did not even appear that the conditions on March second and September eighteenth were in any respect common, e. y., whether the cars observed were running in the day or night, whether the cars were running on the regular schedule or under an emergency of a blockade, or whether the time table was the same.

The intestate was a market gardener, who went to market four times, three times, and sometimes once a week. His wife was asked this question by the learned counsel for the plaintiff: Q. What would he average each load, how much would the product of each load average ? ” which was objected to as incompetent, immaterial, and not evidence of earning capacity. The court ruled: “ If she knows, she may state,” and an exception was taken. The witness then answered that he would average from thirty dollars to thirty-five dollars each load. It then appeared that the intestate employed from one to- four men, three of them for the spring, summer and fall months, who assisted in raising the produce; that he owned eighty acres of land, which he worked, and that he employed horses, wagons and farm implements in the business. The defendant, again moved to strike out the testimony as to the earning capacity and the products of the farm, as testified to, on the ground that capital was involved in the earning capacity of this man, and the capital went to earn a portion of the money or of -the profits testified to by the witness. The motion was denied under exception. I am of opinion that this testimony was not evidence. (Masterton, v. Village of Mt. Vernon, 58 N. Y. 391, 396; Read v Brooklyn Heights R. R. Co., 32 App. Div. 503, 509; Blate v. Third Avenue R. R. Co., 29 id. 388; Johnson v. Manhattan Ry. Co., 52 Hun, 111, 114.) The reasons for the rule of exclusion are stated at length in the Masterton Case (supra), and again in the Read Case (supra), by Woodward, J., and hence it is unnecessary to restate them. In the Masterton case the court, after reviewing the decisions, say, per Grover, J.: “ In none of these cases is any intimation given that proof may be given as to the uncertain future profits of commercial business, or that the amount of. past profits •derived therefrom may be shown to enable the jury to conjecture, what the future might probably be. These profits depend upon too many contingencies, and are altogether too uncertain to furnish any safe guide in fixing the amount of damages.” Under the rule laid •down in that- case the plaintiffs could have proved the business in which the intestate was engaged, its extent, the particular part transacted by him, and the compensation usually. paid to persons, doing such business for others. But the testimony admitted stated the past receipts of a business not dependent entirely upon personal service's, but which involved the use of capital, some eighty acres of land, horses, wagons, farm implements and the labor of. hired servants, while the receipts admittedly varied according to the condition of the markets.

These errors, in our opinion, require a new trial; but one other exception requires comment. The learned court charged the jury that the defendant’s- car had no paramount right (of way) there,” and the defendant excepted thereto. The intestate was turning into Myrtle avenue from Deboo place, which bisected, but did not intersect, Myrtle avenue ; or, in other words, which ran into it, forming a cul de sac, but did not run across it, nor was there any street which ran out of the other side of Myrtle avenue, so as to form, in connection with Deboo place, practically a road of transit over Myrtle avenue. It is well settled that a surface street railroad car has a paramount right of way over the part of a street covered by its rails and-lying within any two lines of corresponding rails, save that at intersecting streets, or at a practical continuation of a bisecting street, the rights of the car and of the crossing vehicle are equal. (Huber v. Nassau Electric R. R. Co., 22 App. Div. 426; Buhrens v. Dry Dock, E. B. & B. R. R. Co., 53 Hun, 571; affd., 152 N. Y. 702; O’Neil v. D. D., E B. & B. R. R. Co., 129 id. 125, 130.) The reason for this limitation is plain, and is given by Earl, J., in the O’Neil Case (supra); the car has a right to cross and must cross the street, and the vehicle has a right to cross and must cross the railroad track. But the reason for the rule ceases where there is no cross street. In Bresky v. Third Avenue R. R. Co. (16 App. Div. 83) this court, per Goodrich, P. J., said that this paramount right must be exercised in a reasonable and in a prudent manner, and, therefore, I think that though such right exists where the rails pass a cul de sac, yet the exercise thereof must be commensurate with the obvious difference between the unbroken part of a street and the part broken by the entrance of a cul de sac which is used by vehicles for access to the street. For though the vehicles cannot use the eul de sac to cross the street, which necessarily is to pass over the rails, they may use it to enter the street, and, therefore, the paramount right must be exercised with ordinary reason and prudence in view of this use and the physical condition of the locality. For example, if a motorman knew, or in the exercise of ordinary care, prudence and experience ought to have known, that at the locality in question vehicles were accustomed to enter the street, and that the condition of the entrance was such as warranted such vehicles, when managed with the same degree of care, to encroach temporarily upon the track while turning into the street from the cul de sac, it would be error for the court to refuse a request to charge the jury that this paramount right must be exercised with such ordinary and reasonable prudence as was commensurate, with such circumstances. Such qualification would be proper because the right is but paramount and not exclusive.

The judgment and order must be reversed and a new trial granted.

All concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  