
    George H. Krebs, Appellant, v. International Railway Company, Respondent.
    Fourth Department,
    July 12, 1910.
    . Bailroad — negligence — collision at grade crossing — erroneous nonsuit.
    Action to recover for injuries caused hy a collision between the' defendant’s tool- ■ ley car and a vehicle which the plaintiff was driving across the tracks. A witness for the plaintiff testified that the motorman, just prior to the collision, was not looking forward, but had turned and was looking into the car. Evidence examined, and held, that the complaint should not be dismissed upon the ground that the testimony of the witness was incredible, owing to the fact that his vision was obscured by a load of hay stationed between him and the motorman.
    Appeal by the plaintiff,- George' H. Krebs, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 14th day of January, 1910, upon the dismissal of the complaint by direction of the court at the close of .plaintiff’s case on a trial at the Erie Trial Term.
    
      Vernon Cole and Philip A. Sullivan, for the appellant.
    
      Dana L. Spring, for the respondent.
   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 nonsuited 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 sixty-seven 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 three or four hundred 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 thirty or forty 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 five 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 thirty or forty feet away from the load of bay; 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 four 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.

All concurred; Spring, J., not sitting.

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