
    Anthony Kueski, Respondent, v. New York and Queens County, Railway Company, Appellant.
    Second Department,
    November, 1905.
    Contributory negligence of one driving on street car track.
    When a driver, declining on the front of his load, and so placed that he cannot easily see behind, turned into a track, and his truck is struck from behind by a street car, and there is no evidence of ordinary care on his part, there is a failure to show freedom from contributory negligence and a nonsuit is proper.
    Appeal by the defendant, the New York and Queens County Railway Company, from a.judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the plaintiff, entered on the 20th day of October, 1904.
    
      Van Vechten Veeder [Nath S. Corwin with him on the brief], for the appellant.
    
      William I. Mathot, for the respondent.
   Hooker, J. :

The plaintiff has had a -recovery for damages to his horse and wagon in a collision with one of the cars of the defendant. The plaintiff’s servant was driving along Jackson avenue in the same direction in which the street car was being operated ;' the avenue at this point and for a considerable distance either way was a straight, road ; the accident occurred about one o’clock in the morning; the night was not stormy. and an electric light ‘ illumined the place of the accident.

The plaintiff has failed' to sustain the burden of proof which, rested upon him to show that -the servant in charge of the vehicle-was free from contributory negligence.- The only evidence on that, question is that of the driver, who said : “.There was an open road there and I was on the right side'towards, not in the track, outside the track ; I was trying, to, get through and the car came in the back, of me and I didn’t see it and it hit me. Q. It hit the Wagon ? A.. The left wheel of the wagon, the hind wheel of the wagon. Q.. Did'you hear anything, any signal or anything? A. Do, sir.. Q. Was any bell rung? A. Do, sir;. I didn’t hear it. Q. Was there-any alarm that you heard ? ,A. Do, sir.” It appears that the servant was reclining . on some bags of peas and beans which lie -was-drawing and was-down so far in front that he could not easily see-What might, approach behind.' From his own. evidence it is. clear that h.e turned into the track of the.defendant in front of the car which struck him, without a thought as to the possible’result of his-act and without taking any precaution or giving a single thought, to-what the. outcome might be: The record is absolutely void -of any evidence tending to', show that he was in the exercise of ordinary care Under the circumstances and, hence, the motion for .a nonsuiton tile ground that the plaintiff had not shown the driver free' from' contributory negligence, which was renewed at the end of the whole-case, should -have been granted. The total failure on the part of. the plaintiff to make any- proof whatever on the subject .of .free-, dom from contributory negligence is a violation of the rule -which. imposes -upon him the burden of proof in that respect. “ A"recovery under such circumstances would be based upon the theory-unknown to oar law that one who drives upon a railroad trackvuntil. negligently run into and injured may obtain damages upon the mere proof of the happening of the. casualty.” (Belford v. Brooklyn Heights R. R. Co., 86 App. Div. 388, 390.) Though it is not negligence as, matter of law for one driving at night oh the track of a -street railway company to fail -to look behind him, he must be -on the 'alert in some manner and by the exercise -of--some of his senses, as for example by listening, to discover whether it -is ¡safe for 'him .to-remain upon the tracks. This doctrine is-supported by abundant-authority. (Bossert v. Nassau Electric R. R. Co., 40 App. Div,. 144; Quinn v, Brooklyn City R. R. Co., Id. 608; Reynolds v. Larchmont Horse R. Co., 83 id. 189; Johnson v. Brooklyn Heights R. R. Co., 34 id. 271.)

The judgment must, therefore, be reversed and a new trial ordered. ,

Hirschberg, P. J. Bartlett, Woodward and Miller, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  