
    Ernest Johnson and Theodore Johnson, Doing Business under the Firm Name of Johnson Brothers, Appellants, v. Samuel Duncan and Julia E. Kelsey, as Executors, etc., of James E. Kelsey, Deceased, and William H. Kelsey, Composing the Firm of Kelsey & Loughlin, Respondents.
    
      Negligence — collision between wagons—when a case is made for the jury.
    
    Upon the trial of an action brought to recover damages resulting from a collision between a wagon belonging to the plaintiffs and one belonging to the defendants the only witness of the occurrence who was examined at the trial testified that the collision occurred on a public street in the borough of Brooklyn in daylight at a time when the street was free from other vehicles. This witness testified that he was driving the plaintiffs’ wagon on the right-hand side of the street and close to the curb; that the defendants’ wagon was being driven in the opposite direction; that there was ample room to pass; but that just as the defendants’ wagon was about to pass the person or persons in charge of it turned toward the plaintiffs’ wagon and without looking drove into it.
    
      Held, that the testimony of the witness if believed established the plaintiffs’ case, and required a consideration and determination of the action upon the merits; That it was, therefore, improper for the trial judge to nonsuit the plaintiffs.
    Appeal by the plaintiffs, Ernest Johnson and Theodore Johnson, doing business under the firm name of Johnson Brothers, from a judgment of the Municipal Court of the city of New Yorjc, borough of Brooklyn, in favor of the defendants, entered on the 12th day of July, 1904, dismissing the complaint without prejudice to a new action.
    
      Frederick W. Sparks, for the appellants.
    
      William F. Hagarty, for the respondents.
   Hirschberg, P. J.:

The court dismissed the complaint, with costs, but without prejudice to a new action, in accordance with the provisions of section 248 of the Municipal Court Act of the City of New York (Laws of 1902, chap. 580). The dismissal was at the close of the plaintiffs’ case, and it must be assumed it was because the plaintiffs had failed in the opinion of the court to prove their cause of action.

The action is to recover damages resulting from a collision between a wagon of the plaintiffs and one belonging to the defendants, which collision it is charged resulted from the negligence of those in charge of the defendants’ wagon. The collision occurred in Schermerhorn street in Brooklyn, in daylight, and, according to the only witness of the occurrence who was examined on the trial, at a time when the street was free of other vehicles. The witness testified that he was driving the plaintiffs’ wagon on the right-hand side of the street and close to the curb ; that the defendants’ wagon was being driven in the opposite direction; that there was ample room to pass; but-that just as the defendants’ wagon was about to pass, the person or persons in charge of it turned toward the plaintiffs’ wagon and without looking drove into it, inflicting the injury complained of. The evidence was clear and explicit; the witness, who was driving the plaintiffs’ wagon, testified as follows: “ Q. Was there sufficient room for you to pass between this wagon and the curbstone on your right hand side? A. No sir. Q. When you first saw it ? A. First there was plenty of room; if he keeps on to his right there would be plenty of room for me to drive on. Q. When you first saw him was there sufficient room for him to pass ? A. Yes. Q. What did he do? A. Turned his team of horses over on my side. Q. To which direction ? A. To my side. Q. On the side that you were on ? A. Yes. Q. Did he run into you ? A. Yes. * * * Q. Now, was there sufficient room for you to pass that wagon at the time you first saw it, ten feet this side of Third Avenue ? A. Yes. Q. What did the wagon then do, or what did the driver then do ? A. He turned over his horses, over to the left hand side. Q. How did he come, up to the time that he struck your wagon? A. He drove right into my wagon, right into my shaft, straight over to my shaft. * * * Q. Was there a man on the wagon driving the horses? A. Two men on the wagon. Q. Did they have hold of the reins, one of them ? A. I didn’t take any notice. Q. Were they looking toward you? A. No, sir. * * " Q. He drove right across the street and ran into your horses? A. Yes.” This evidence uncontradicted established the plaintiffs’ case if believed, and it certainly required a consideration and determination of the action on the merits. It was, therefore, error to grant a nonsuit. (Schlesinger v. Jud, 61 App. Div. 453.)

The judgment should be reversed.

All concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  