
    Charles E. Barringer, Respondent, v. United Traction Company, Appellant.
    Jfegligehce— injury to the driver of an open wagon which, while one foot from the trades of a street railway, is struck by a can' approaching from the rear— the paramount right of a street ear and the right of a wagon on a city street, considered — duty of the motorman to notify the driver of the wagon of the can''s approach. ' .
    In an action brought to recover damages for personal injuries, it appeared that while the plaintiff was,- at about ten or eleven o’clock on a July morning, driving a one-horse open wagon along .a city .street at a distance of one foot from the defendant’s street railway track, his wagon was. struck by one of the defendant’s cars, which approached the wagon from behind and which had given no signal of its approach, and that in consequence of such collision he received thp.in juries for which he sought tó recover.
    It further appeared that the plaintiff had driven slowly along the track, át a distance of about 1 foot ther'efrbm, for 600 feet; that the street was-level and unobstructed, and amply wide enough to enable him to drive free from the track; that when about 300 feet from the place where the collision occurred-he looked back to see whether a car was coming and then saw a car about 200 feet away, but that hp did not pay enough attention thereto to notice whether it was standing, still or approaching; that he did not again look backward until the collision occurred; that he was driving slowly, and that the wagon did not at any timé get on the track,
    
      .Held, that a judgment entered upon a verdict in favor of the plaintiff should be affirmed;
    That person’s driving horses upon a street in which a street railway is operated have a right to the use of the whole street, subject only to the paramount right - of the street railway company, where the use of a particular portion of the street is sought by both parties at the same time;
    
      That a person driving a horse upon such a street is not bound to avoid the street railway tracks, but that he does all that is incumbent upon him by leaving the track when warned by a signal from the motorman of an approaching car; .
    That, in any event, it could not be said as a matter of law that the plaintiffs failure to leave his position near the defendant’s track before he was warned constituted contribu tory negligence on his part.
    Parker, P. J., and Chester, J., dissented on the ground that the plaintiff was guilty of contributory negligence.
    Appeal by the defendant, the United Traction Company, from a judgment of the County Court of Rensselaer county, entered in the office of the clerk of the county of Rensselaer on the 16th day ■of June, 1904, upon an order of said County Court, entered on the 15th day of June, 1904, affirming a judgment of the City Court of 'Troy in favor of the plaintiff, entered on the 25th day of November, 1903, and also (as stated in the notice of appeal) from the said ■order upon which the judgment appealed from was entered.
    The plaintiff was driving in a one-horse open wagon, going west on the south side of Congress street, in the city of Troy. The defendant’s car was going in the same direction, upon a single track which ran through such street.. The plaintiff drove for some six hundred feet along such track and about one foot from the rail. He looked behind him to see if any car was coming just after he crossed Second street, and saw a car about half a block or more away; ■could not tell whether it was standing still or was coming; did not pay enough attention to notice. After that, he drove to within twenty feet of First street, without again looking backward, and then the wagon was struck by the car, which came up behind him, and he was thrown backward into the wagon and injured. The wagon was going slowly and did not at any time get upon the track. It seems to have continued to travel about a foot from the rail all that distance. It was about twelve or fourteen feet from the south rail to'the curb on the south side of Congress street, giving plaintiff ample room in which to drive free of the track. It was a paved street, level, and perfectly clear of any obstruction at that time. The distance from First street east to Second iwas about three hundred feet, and the distance from Second street east to where he saw the car when he looked back was about two hundred feet.
    The car was an open one, and as it approached the wagon from behind no bell' was rung or other signal' was given. The accident occurred on July 6,1903, at about ten to eleven o’clock a. m.
    This action is brought to recover for the injuries thus sustained by the plaintiff, and such are the' substantial facts upon which the= recovery was had. It was tried in the Troy City Court without a-jury. At the close of the plaintiff’s evidence the defendant moved for a nonsuit, which was refused. The defendant'offered no evidence, and the justice thereupon rendered judgment against defendant for $278.20 damages, and costs. The defendant appealed to-the County Court, where the judgment was affirmed, and from sucH judgment of affirmance this appeal is taken.
    
      Patrick C. Dugan, for the appellant.
    
      James V. Coffey, for the respondent.
   Per Curiam :

The right of a street car upon that part of the street upon wliichi are its tracks has been called a paramount right. It is not an. exclusive right. . Those driving horses upon the street have a right'to the .use of the whole street subject only to the paramount right', of the street car company, where the use.of a particular part of the= street is sought by both at the same time. If a driver were bound to avoid the center of the street, where were the tracks of the company, whenever a car was in sight it Would be a serious limitation upon his right to use the street and in a city.of the size of Troy where cars run frequently would well nigh„exclude him from the: use of -that part of the street. If when driving upon the track he: leaves the track when warned by a signal from the motorman of the-car that the track - is needed for his ear we think he has done all that is necessary in recognition of the paramount right of the car to-the use.of that part of the street. At least it cannot be said as matter of law that his failure to leave the track when not warned constitutes such contributory negligence as would defeat his action for injuries sustained through the negligence.of the motorman in running Mm down without warning.

The judgment should be affirmed.

All concurred, except Parker, P. J., dissenting in opinion in. which'Chester, J., concurred.

Parker, P. J.

(dissenting):

I concur in the conclusion reached by my brethren that the -defendant was. plainly chargeable with negligence which caused the plaintiffs injury, and also that the facts of this case do not warrant the conclusion reached by the County Court that the defendant was liable for such injury even though the plaintiff himself was guilty ■of negligence which contributed to it; ,but I do not concur in their ■conclusion that the plaintiff was shown to be free from contributory ■negligence. It seems to me that we should hold in this instance that the plaintiff’s conduct so clearly contributed .to his injury that the verdict of the jury upon that question should not be allowed to stand.

In Fleckenstein v. D. D., E. B. & B. R. R. Co. (105 N.Y. 655) the court lays down this rule: “ Street railways have the lawful right to put their tracks in streets and run their cars thereon. Their ■cars are confined to the tracks, and cannot turn out to avoid obstacles thereon. Hence they have the right of way and persons lawfully ■driving upon the same tracks must not recklessly, carelessly or willfully obstruct the passage of their cars. But such persons are not absolutely bound to keep off or get off from the tracks; they must fairly and in a reasonable manner respect the paramount right of a street railway; and if they do this, and without any fault on their part they are injured by carelessness or fault chargeable, to the railway, the law affords them a remedy by action for damages.”

The plaintiff in the case before us did not give the slightest consideration to the passage of the defendant’s cari, but recklessly and so indifferently as to suggest willfulness,-drove for upwards of five hundred feet through an open and entirely unobstructed street with .abundant room- to turn away from the rail, yet so close to it as to prevent .the car passing his cart until it should slow down and wait for him to turn aside. During the whole of this distance, he was in a position to obstruct the car and risk being hurt, or to turn away about a foot and allow the car free passage and at the same time secure certain safety for himself. Such a method of unnecessarily ■obstructing the track when it could as easily and conveniently be left free, is not, in my judgment, a fair and reasonable manner of respecting “ the paramount right of a street railway.”

Nor does it indicate such reasonable care for his own safety as warrants his complaining of carelessness on the part of the motorman. I think he owed, both to himself and to the defendant,, under such circumstances, greater care than merely to drive off or away from the track when warned that the- car was upon him. The rule above cited indicates that he is not yet exonerated from all-care of himself, and that he may not entirely rely upon the care off the motor man to protect him. In this ease the circumstances seem to indicate that the motorman misjudged the distance between the1 ear and the cart and so hit the cart in his effort to pass it. If the plaintiff had exercised a very slight amount of care on his part, the-accident would not have occurred, arid in my judgment-it was hie-plain duty to have so exercised it.

I think-the judgment should be-reversed.

Judgment affirmed,, with costs.  