
    Henry Dater, Resp’t, v. Thomas Fletcher, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed November 4, 1895.)
    
    1. Negligence—Contributory—Question of fact.
    Where the jury is well authorized, upon the proof adduced, to draw the-inference that the accident was due solely to the recklessness of the defendant’s servant, the question is not one of law, hut of fact.
    
      2. Same.
    Where vehicles are about to cross each others path, the duties of the parties are correlative, and neither is called upon to anticipate the negligence of the other; nor does the failure of one party to exercise due care cast an additional duty of diligence upon the other.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    
      Artemas B. Smith, for app’lt; Hldon Bisbee, for resp’t.
   Bischoff, J.

This action was for damages - resulting from a collision between the vehicles of the respective parties, and the-case went with the plaintiff. Upon this appeal, the defendant relies upon but one- ground,—namely, that the plaintiff’s contributory negligence was established as a matter of law; and for this reason, and because we find no other ground upon which the appeal could well prevail in any event, the question is to be disposed of on that point.

The facts which the evidence amply supports follow: Plaintiff was driving his carriage at a walk, proceeding in a southerly direction, from the entrance of Central- Park at Eighth avenue, to the intersection of Broadway with the “ circle,” the latter a large open space, covered with concrete and sand, deadening the sound of horses and vehicles which might be driven thereon. The entrance to the park abutted upon the circle, and plaintiff's course was in a line across it, and called for his traversing at right angles the tracks of the Cross-Town Railway, a double-track street railroad proceeding along Fifty--Uinth street, east and west, and crossing the circle. Defendant’s servant turned his wagon, driven at a very high rate of speed, into the circle, and upon the southerly track of the railway, when the plaintiff’s horse had reached the northerly track ; the vehicles being at that time about 150 feet apart. Both parties maintained their respective rates of speed, and the accident occurred through the plaintiff’s hind wheel being struck by a wheel of the more rapidly moving wagon, before' the northerly track had been completely crossed by the plaintiff.

It must be taken as established that the defendant’s servant was negligent,—in fact, it is so conceded; but the claim is made that the plaintiff, in failing to turn his head for the purpose of seeing in both directions when approaching the car track, was himself at fault. We cannot so view the case. The situation wa, not such as is presented where an approach is made to a crossing-the dangerous nature of which and the difficulty of proper obsers vation before the locality is reached requiring more than ordinary diligence upon the part of the person making the attempt to cross, since here there was no obstruction to the view,— in fact, no “ crossing,” as the word is to be understood. These vehicles but approached one another upon an open space, and the line taken by either one might be said to cross the path of .the other. The evidence shows that the plaintiff looked to the front when proceeding upon his course. Thus, the locality being as noted, he was reasonably in a position to observe any approaching danger from vehicles expected to cross his path, to which effect is his own testimony. Under these circumstances, the question was not one of law, but of fact; and the jury was well authorized, upon the proof adduced, to draw the inference that the accident was due solely to the recklessness of the defendant’s servant. See Chisolm v. State, 141 N. Y. 246; 56 St. Rep. 811. That this individual was driving at a very rapid rate when distant 150 feet from the plaintiff did not, as matter of law, require the latter to take note of the fact, rein in his horse, and forego his attempt to gain his objective point. He could rely upon the exercise of ordinary care upon the part of the defendant’s servant, as of any other driver in the street The duties of the parties were córrelative, and neither was called upon to anticipate the negligence of the other; nor was the defendant’s failure in the exercise of due care to cast an additional duty of diligence upon the plaintiff. Anselment v. Daniell, 4 Misc. Rep. 144; 53 St. Rep. 133. In view of the position of the vehicles, the defendant’s servant was better able to render the situation wholly safe than was the plaintiff, since the latter, after coming upon the track, would have been required to- turn his head directly at right angles in order to guage the speed of the former, who had the scene completely before him. It would have been manifest error to have withheld the case from the jury upon the issue of contributory negligence, and we have but to affirm the judgment.

Judgment and order affirmed, with costs.

All concur.  