
    Louis Tolkon, Appellant, v. Otto E. Reimer Company, Respondent.
    Second Department,
    April 24, 1908.
    Highway—obstruction by pushcart—negligence—injury by passing vehicle.
    A vendor unlawfully obstructing a city street with a pushcart in violation of the city charter and paying no attention to passing vehicles cannot recover damages for injury caused by the hub of a passing truck overturning his pushcart, unless it appear that the driver willfully or wantonly ran against it, for his unlawful obstruction of the street contributed to the accident.
    The fact that there were no other obstructions in the street does not prove that the act of the driver was wanton where he was on the proper side of the street away from the street car tracks.
    Gaykor and Hooker, JJ., dissented, with opinion.
    Appeal by the plaintiff, Louis Tolkon, from a judgment of the Supreme Court in favor of. the defendant, entered in the office of the clerk ot the county of Kings on the 11th day of February, 1907, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the Kings County Trial Term.
    
      Jacob W. Kahn, for the appellant.
    
      William L. Kiefer [Frank V. Johnson with him on the brief], for the respondent.
   Miller, J.:

The plaintiff was obstructing the street for the purpose of vending his wares. It cannot be doubted that that was an unlawful encroachment upon the street, for it was not in any sense a legitimate street use. Section 50 of the city charter (Laws of 1901, chap. 466) provides, amoug other things, that the board of aider-men shall not have power to authorize the placing or continuing of any encroachment or obstruction upon any street or sidewalk, except the temporary occupation thereof during the erection or repairing of a building on a lot opposite the same.” (See, also, Cohen v. Mayor, etc., of N. Y., 113 N. Y. 532.) Although unlawfully obstructing the street, the plaintiff admits that he did not exercise the slightest care to avoid being hit by passing vehicles. His pushcart was in the roadway and he ivas standing on the side toward the center of the street, facing the sidewalk, showing his'wares to a customer, but taking no heed whatever of the traffic in the street. His unlawful occupation of the street contributed to his accident, unless the defendant’s driver willfully or wantonly ran into him. (Banks v. Highland Street Railway Co., 136 Mass. 485.) The plaintiff’s evidence discloses that as the defendant’s truck was passing the plaintiff, the hub of the rear wheel struck the handle of the pushcart. The mere fact that there were no other obstructions in the street does not prove that the act of the driver was either willful or wantonly reckless. He was properly on that side of the street, away from the street ear tracks, and even if the plaintiff had been lawfully in the street he would have had to exercise some care to avoid being hit by passing Ambicies. (Lyons v. Avis, 5 App. Div. 193.)

The complaint was properly dismissed, and the judgment should be affirmed.

Woodward and Jenks, JJ., concurred ; Gaynor, J., read for reversal, with whom Hooker, J., concurred.

Gaynor, J. (dissenting):

This action is brought to recover damages caused by the defendant’s wagon being run into the plaintiff in the street. The plaintiff is a push-cart peddler. He was standing at his push-cart, which Avas by the curb in the roadway, showing his wares to a customer when the defendant’s horse and wagon, unobserved by the plaintiff, Avas driven into the push-cart by the driver, turning it over and injuring the plaintiff. The learned trial judge dismissed the case at the close of the plaintiff’s evidence.

The mere fact that the plaintiff was there selling merchandise out of his push-cart, although it be granted that he was there unlawfully, is not enough in itself, as matter of law, to make out a case of contributory negligence against him. The two things are not synonymous. Nor is negligence in a plaintiff always synonymous with contributory negligence. The plaintiff may be negligent, and yet if his negligence do not contribute to the occurrence, it is not taken into account but passes for naught. A familiar example is the case of one driving in a street car track and a car coming up and hitting him behind. He may be negligent in being there, and yet such negligence may not contribute to the collision. The collision may be willful and intentional on the part of the defendant, and in that case such conduct of the defendant is the sole cause of the collision. It is like a battery. The negligence of the plaintiff does not enter into it at all. In the present case the evidence suffices to have enabled the jury to find that the plaintiff’s unlawful occupation of the street did not contribute to the collision. It cannot be gainsaid that although unlawfully there, the defendant did not have the right to run into him, but owed him the duty of due care, and if disregard of that duty, or lack of such due care, was the sole cause of the collision, the defendant is liable. There was no car, wagon or other obstruction in the street at the time, and no reason why the defendant’s wagon should have come near the plaintiff.

The judgment should be reversed.

Hooker, J., concurred.

Judgment affirmed, with costs.  