
    Michael Schilling, Appellant, v. Metropolitan Street Railway Company, Respondent.
    
      Negligence — injury to the driver ¡of a wagon upon 'a street railway track struck by a, ca/r approaching from behind.
    
    Where a person of good eyesight and unimpaired hearing, engaged in driving a covered delivery wagon in broad daylight, upon reaching a street in which an electric railroad,is operated, looks in both directions for approaching cars, and! seeing none, enters upon the track, and after he has driven but a single block to a street intersection, his wagon is struck by a car approaching on the track from behind, it cannot be said, as a matter of law, that he, was. guilty of contributory negligence in not looking behind him while driving the distance of-a single block, or that it was not negligence on -the part of the motorman to run him down.
    Appeal by the plaintiff, Michael Schilling, from a judgment of the Supreme Court in favor of the defendant,, entered in the 'office of the clerk of the county of New York on the 23d day of April, 1898, upon the dismissal of his complaint by direction of the court at the close of the plaintiff’s evidence after a trial, before the court and a - jury, at the New York Trial Term. ■
    This appeal was transferred from the first department to the second department.'
    
      Leon Sanders, for the appellant.
    
      Charles F. Brown [Henry A. Robinson with hiiii on the brief], for the respondent.
   Woodward, J.:

A motion for a nonsuit was granted at the close of the plaintiff’s •evidence, and in the consideration of this appeal we are to give the plaintiff the benefit of the most favorable inferences deducible from the evidence. (Higgins v. Eagleton, 155 N. Y. 466.) The facts established by the plaintiff’s evidence, under this rule, app.ear to us to. constitute a cause of action, and the questions should have been submitted to the jury. The action is one for damages for injuries sustained by the plaintiff by reason of a rear-end collision, a car of the defendant running into the wagon driven by the' plaintiff upon the tracks of the former. According to the testimony plaintiff was engaged in delivering goods in a covered wagon, and was driving through Lexington avenue about one o’clock in the afternoon of the 21th day of February, 1896. He had come from Eleventh avenue through Fifty-third street, and before entering upon the tracks of the defendant had looked in both directions, and seeing no car had turned his team to the south, intending to go down the avenue two blocks to Fifty-first street. The evidence does not disclose whether it was necessary for the plaintiff to be upon the track of the defendant, but it is certain that he had a right to be there, subject only to the paramount right of the defendant to a free use of its tracks, which does not amount to a license to -run down everything which momentarily obstructs its way. The plaintiff, at the time of the accident, was sitting upon a seat upon the forward end of the wagon, With his feet upon the dashboard in front of him, driving slowly, and when at- the intersection of Fifty-second street, one block from the point where, after looking in both directions, he entered upon the tracks of the defendant, his wagon was struck from behind -by a car of the defendant, and he was thrown to the ground, receiving the injuries for which he seeks recovery. This accident occurred in broad daylight; the ’ plaintiff had good eyesight and his hearing had not been impaired; he had taken the precaution to look out for an approaching car on entering upon the tracks, and it cannot be said as a matter of law that he was guilty of contributory negligence in not looking behind him during the time that it would take to drive a single block, or that it was not negligence on the part of the defendant to run him down. Both parties were charged with the duty of exercising reasonable care, and it was for the jury, taking all of the facts and surroundings into consideration, to determine whether the plaintiff had sustained the burden of proof which the law demands in cases of this character.

The defendant relies upon Adolph v. Central Park, N. & E. Riv. R. R. Co. (76 N. Y. 530); Johnson v. Brooklyn Heights R. R. Co. (34 App. Div. 271); Bossert v. Nassau Elee. R. R. Co. (40 id. 144); Quinn v. Brooklyn City R. R. Co. (Id. 608), but we are of opinion that none of these cases sustain the position that, under the circumstances of the ease at bar, it would be proper to take the case from the jury and dispose of it as a matter of law. The Adolph case is no longer regarded as authority; except as it has been modified by subsequent decisions (Fishbach v. Steinway Railway Co., 11 App. Div. 152); and the facts are materially different from those in the Johnson case, where the accident occurred in a rural portion of Brooklyn, on a dark night, with practically no artificial lights,, and it appeared from- the evidence that the plaintiff had driven a mile or more without taking any precautions whatever to guard against accidents. We fail to discover in the Bossert case anything which would,help the defendant; in that case the question of negligence and of contributory negligence was submitted to the jury, and the court sustained the verdict in favor of the plaintiff, although it was in evidence that the defendant actually gave warning to the plaintiff, who failed to get out of the way in time to avoid the accident. -In the case' at bar, so far as appears, there was no warning whatever, though the accident occurred in broad daylight, when the motormaii in the exercise of reasonable care must have been able to have seen the plaintiff’s wagon in time to have avoided the accident, particularly as the collision occurred at a street intersection, where it was the duty of the defendant’s motorman to have the car under control to avoid danger to persons crossing the tracks..

We are equally clear that the Quinn case does not support the judgment in the case at bar; that Was an accident in the early morning hours, and the evidence affirmatively shows contributory negligence on the part of the plaintiff.

It is hardly profitable at this time to review the decisions upon the question of negligence; each case of necessity must depend to a considerable extent upon its own peculiar circumstances, and the general rules have been so: often stated that a reiteration can be of no service at this time. Where there is evidence from which the jury may properly conclude that the defendant has been guilty of negligence resulting in injury to'the plaintiff, and where there are facts from which the jury may reasonably infer that the plaintiff has not been guilty of negligence contributing to the accident, the question should be submitted to the jury ; and we are of opinion that in the case at bar the evidence of the plaintiff was sufficient to justify a submission. The conduct of the defendant, unexplained, in run- • ning into the plaintiff from the rear in broad daylight at a street intersection, was sufficient to justify the jury in finding that the defendant was guilty of negligence; and it was proper that the jury should determine whether the plaintiff, after looking in both directions, was guilty of contributory negligence in driving one block without looking back to see if a car was approaching; whether he was justified in assuming, under the circumstances, that the defendant would give him warning in time to allow him to get out of the way.

The judgment appealed from should be reversed, and a new trial granted, with costs to abide the event.

All concurred.

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