
    The Ebling Brewing Company, Respondent, v. George W. Linch, as Receiver of the Second Avenue Railroad Company, Appellant.
    (Supreme Court, Appellate Term, First Department,
    May, 1913.)
    Evidence — action to recover damages to automobile truck — right of way — judgments.
    In an action to recover damages to plaintiff’s automobile truck, which while going north on the north-bound track of defendant’s railway collided at a street intersection in the city of New York with a trolley car moving south on the other track, the exclusion of evidence of a city ordinance which provides that on all the public streets and highways all vehicles going in a northerly or southerly direction shall have the right of way over any vehicle going in an easterly or westerly direction was prejudicial error where the jury was charged that the rights of the plaintiff and defendant at the street intersection were equal, and where the evidence as to how the accident occurred, the truck being struck in attempting to cross the street, was conflicting, and a judgment entered on a verdict in favor of plaintiff will be reversed.
    Appeal by the defendant from a judgment of the City Court of the city of New York, entered in favor of the plaintiff upon the verdict of a jury, and also from an order denying defendant’s motion for a new trial.
    Charles E. Chalmers, for appellant.
    Eugene Cohn and Julius Levy (Eugene Cohn, of counsel), for respondent.
   Page, J.

This is an action to recover damages to an automobile truck resulting from a collision with a trolley car operated by the defendant.

The automobile truck was moving north upon the north-bound tracks upon First avenue. The defendant’s car was moving south upon the other track. The car was coming up a somewhat steep incline. Plaintiff’s chauffeur swung his truck over and attempted to cross at the junction of Seventy-second street for the purpose of proceeding westerly along Seventy-second street, when the collision occurred. There is the usual contradiction of testimony. The plaintiff’s witnesses state that they .saw the car between Seventy-third and Seventy-fourth streets, coming rapidly; that their truck had proceeded across the track so that the rear wheels were upon the slot in the middle of the track when the car, the speed of which had not been slackened, struck the rear wheel and also about the center of the battery box of the truck with such violence that, although it weighed between four and five tons, the rear end was thrown over against the curb. The defendant’s witnesses testify that the truck did not start to cross the track until the car was within fifteen feet; that.the car was proceeding at the rate of only about six miles an hour and immediately the motorman threw off the power and applied- the brake, and that the car struck the truck in the middle betewen the two wheels.

The court erroneously excluded section 448a of the ordinances of the city of New York which provides: On all public streets and highways of the City, all vehicles going in a northerly or southerly direction shall have the right of way over any vehicle going in an easterly or westerly direction.” The question of right of way had an important bearing not alone upon the question of defendant’s negligence but upon the freedom of the plaintiff’s chauffeur from contributory negligence. This is evident from the fact that the court impressed upon the minds of the jury that the rights of the plaintiff and defendant at the intersection of the streets were equal.

That would have been true had not the ordinance of the city given the defendant the right of way. Therefore, the exclusion of the evidence in the light of the charge was prejudicial error.

The judgment will be reversed and a new trial granted with costs to appellant to abide the event.

Guy and Gebard, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.  