
    KREBS v. INTERNATIONAL RY. CO.
    (Supreme Court, Appellate Division, Fourth Department.
    July 12, 1910.)
    Street Railroads (§ 117)—Action for Damages—Questions fob Juey.
    In an action against a street railroad company for injuries in a collision between one of its cars and plaintiff’s wagon, evidence held sufficient to go to the jury as to whether the collision resulted from the motorman’s negligence.
    [Ed. Note.—For other cases, see Street Railroads, Dec. Dig. § 117.*]
    Appeal from Trial Term, Erie County.
    Action by George H. ICrebs against the International Railway Company. From a judgment of dismissal, plaintiff appeals.
    .Reversed, and new trial granted.
    Argued before McLENNAN, P. J., and WILLIAMS, KRUSE, and ROBSON, JJ.
    Vernon Cole, for appellant.
    Dana L. Spring, for respondent.
    
      
      For other cases see same topic & § number in. Dec. & Am. Digs. 1907 to-date, & Rep’r Indexes
    
   ' KRUSE, J.

The defendant’s motorman drove his car against a load of hay, which the plaintiff was hauling across the defendant’s tracks with a team of horses and wagon. The action is brought to recover damages resulting from the collision. The plaintiff was non-suited, and appeals.

The plaintiff, a farmer living outside of the city of Buffalo, had sold a load of hay to the International Brewing Company. He had brought the load of hay into the city and weighed it on the brewing company’s scales. The scales are in front of the brewing company’s plant, on the westerly side of Niagara street, between the curb and the building. Plaintiff’s team was facing southwesterly. After the hay had been weighed the plaintiff drove southwesterly about 67 feet, where there is an opening in the curbing for a driveway into the street. He turned his team into the street, looked for 'street cars, saw the car which struck him, then about 300 or 400 feet away, and proceeded to drive across the tracks. He crossed the south-bound track, and when he was upon the north-bound track, upon which the car was approaching, he saw the car 30 or 40 feet away, coming toward him. He spoke to his horses, and tried to get across the track; nearly succeeded, but failed. The accident happened a little after 5 o’clock on the 23d day of December, 1908. When the plaintiff was driving across the track, his hired man was on another load of hay, which was then being weighed upon the scales. The man at the scales testified that he happened to look up when the car was about 30 or 40 feet away from the load of hay; that the back end of the load was struck, and tipped over; that when he saw the car coming he saw the motorman; that the motorman was standing with his head turned back in the car; that he (the motorman) was looking behind him—not looking in front; that the car was going pretty fast; and that the motorman did not turn his head until he was 4 feet from the wagon.

It is contended on behalf of the respondent that the hired man’s story is so incredible that it ought to be disregarded as a matter of law, the claim being that the load of hay was in the line of vision between the man and the car; or at least between him and the motorman. I think that claim is not conclusively established. The wagon was nearly across the track; it was dusk, but light enough for the hired man to see the motorman and car, and the motorman could see the load of hay if looking ahead. At least it can be so found from the evidence. The motorman was not sworn, as the motion for a nonsuit was granted at the close of the plaintiff’s evidence.

I think the nonsuit was improperly granted. As the case then stood it could well be found that the accident occurred through the inattention and lack of care of the motorman, and without any fault on the part of the plaintiff. The judgment should therefore be reversed, and a new trial granted, with costs to the appellant to abide the event.  