
    Fergus Mullen, Resp’t, v. The Central Park & East River Railroad Co., App’lt.
    
      (City Court of New York, General Term,
    
    
      Filed November 25, 1892.)
    
    Negligence—Street railway.
    Plaintiff's driver temporarily stopped on defendant’s track to receive orders, when defendant’s car ran into the cab. Tljere were snow hanks on each side of the street. Held, that the driver had a right to drive over that portion of the highway, and that the case was one for the Jury to determine.
    Appeal from judgment entered on verdict in favor of plaintiff.
    
      W.- Bourhe Cochran, for resp’t; Vanderpoel, Creen é Goodwin, for app’lt.
   Ehrlich, Ch. J.

The action was for negligently running into the plaintiff’s cab, whereby he sustained damage, etc.

Plaintiff’s driver had temporarily stopped on defendant’s track to receive directions, and, while receiving them, the defendant’s car ran into the cab and did the damage. There were snow banks on each side of the street, and the plaintiff’s driver had the right, notwithstanding defendant’s right of way, to drive his cab over that portion of the' highway covered by the defendant’s tracks. He did not see the car and had no warning of its approach. He was not unnecessarily obstructing the track, but receiving, orders in reference to his cab, which on account of the snow he could not receive nearer the sidewalk.

The driver of the cab did not anticipate danger, and, as a rule, none was to be anticipated from a horse car, as there is always time for warning.

At all events, the questions whether (1) the defendant was guilty of negligence, and (2) the plaintiff free from it, were for the jury, being matters about which minds might differ.

This case was one for the jury, the verdict satisfactorily sustained by the evidence, the damages not excessive, and no errors committed which require a new trial.

It follows that the judgment and order denying the motion for a new trial must be affirmed, with costs.

FTewburger, J., concurs.  