
    Herman H. Lorenz, Respondent, v. Josiah B. Tisdale, Appellant.
    (Nos. 1 and 2.)
    Second Department,
    June 12, 1908.
    Motor vehicles — negligence — collision with truck—rights and duties on highway.
    Automobiles have no right of way over other vehicles.
    One who at night drives an automobile into the rear of a loaded truck which the driver had stopped in the highway to rest his horses, is guilty of contributory negligence and cannot recover for-the injuries received. It is no excuse that after rounding a curve and discovering the truck the motorist could not stop in time, for under the eircúmstances he should have had his machine under control.
    It is not negligence for the driver of an unlighted truck to stop the same at night in the center of the highway to rest his horses, it appearing that there was room to pass.
    
      Appeal in each of the above-entitled actions by the defendant, Josiah B. Tisdale, from a judgment of the County. Court of Queens county in favor of the plaintiff, entered in the office óf the clerk of ■ the county of Queens on'the 21st day of November, 1907, upon, the verdict of a jury for $700 in action No. 1, and for $383 in action No. 2, and also from an order entered in said clerk’s, office on the 23d day of December, 1.907, in each action, denying the defendant’s motion for a new trial made upon the minutes.
    
      John Hetherington, for the' appellant.
    
      William H. Siebrecht, Jr., for the respondent.
   Miller, J.:

On the evening of September 26, 1906, at about seven-fifteen o’clock, an automobile, driven by the plaintiff, crashed into the rear of one of the defendant’s trucks, loaded with lumber, with such force as to push the lumber forward onto the horses, and wreck the automobile. The plaintiff has recovered two- judgments, one for personal injuries "and the other for injuries to the automobile. It is suggested that the defendant’s driver was guilty of negligence for not getting the heavily loaded truck out of the way of the' automobile and for not having a light displayed at the. rear of the truck, but automobiles do not have the right of way over other vehicles. ■ There were two trucks, one ahead of the other, the plaintiff’s automobile cleared the rear truck but struck the head truck which was nearer the center of the road, and there is some evidence to the effect that the trucks' were standing still. But negligence cannot be inferred' from either of those facts. It was not negligent for the drivérs to rest their horses, and heavily loaded trucks do not have to be driven in the gutter to avoid the recklessness of automobile drivers. If the' driver óf the automobile wished to "pass the truck he should have done so without hitting it, and if lie came upon the truck so suddenly that he could not stop his machine, he and not the driver of the truck was at fault. The plaintiff says that it was dark, and that because of a sharp curve and the grade of the road the lights on the automobile "did not disclose the trucks until he was upon them ; if so, he should have had his automobile under control. It appears that the trucks were, sufficiently to the right of the road to allow a horse and carriage going in the opposite direction to pass. The plaintiff drove his automobile between said passing carriage and the rear truck. The occupants of the carriage escaped injury only by reason of the alertness of the driver in pulling his horse into the ditch..

The complaints should have been dismissed.

..Woodward, Jenks, Hooker and Gaynor, JJ., concurred.

Judgments and orders of the County Court of Queens county reversed and new trial ordered, costs to abide the event.  