
    George Stern, Respondent, v. The Brooklyn Heights Railroad Company, Appellant, Impleaded with Jacob Schenker, Defendant.
    Second Department,
    October 7, 1910.
    Railroad—negligence — collision between car and vehicle causing injury to other vehicle — facts not showing negligence.
    A street railroad company while operating its car in the center of a block where it has the right of way is not negligent in failing to sound a gong or give warning to the owners of commercial vehicles stationed along the curb, unless it becomes apparent that the driver of such vehicle intends to drive upon the track. The motorman is not called upon to foresee that the driver of such vehicle will disregard his own duty to exercise reasonable care by driving in front of an approaching car even though he be headed in [the same direction.
    Hence, one whose vehicle while stationed at the curb was struck by another vehicle which was negligently driven in front of an approaching car cannot recover of the railroad merely because the motorman failed to ring a gong if he had no reason to expect that the vehicle would go upon the tracks and though the car was moving at a reasonable speed it was impossible to stop it in time to avoid the collision.
    Hirschberg, P. J., and Rich, J., dissented.
    
      Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff and against the said defendant, rendered on the Utli day of January, 1910.
    
      James W. Carpenter, for the appellant.
    
      Julius S. Belfer, for the respondent.
    
      George Goldberg, for the defendant Schenker.
   Woodward, J. :

The plaintiff has recovered a judgment in the Municipal Court for sixty-four, dollars and twenty-five cents damages and twelve dollars costs in an action for injuries to his wagon and contents in a collision between a wagon owned by the codefendant Schenker and a car of the defendant the Brooklyn Heights Railroad Company. The plaintiff is a furniture dealer, and on the occasion of the accident his horse and wagon", with a consignment of furniture, was drawn up near the curb in front of his store on Myrtle avenue, Brooklyn. Just in the rear of the plaintiff’s wagon a horse and wagon owned by the codefendant Schenker was drawn up near the curb, and the driver crossed the street to deliver a package. Returning, the driver • of Sclieuker’s wagon got on the vehicle and started to drive around the plaintiff’s wagon. He had just reached a point where the front wheels of his wagon were passing over the near rail of the defendant’s, street surface railroad, when his rig was struck by a wrecking car of the defendant, and'his wagon was forced against the wagon of the plaintiff, and the latter was pushed some seven or eight feet against an awning pole, resulting in damages to the wagon and contents. The plaintiff’s evidence is to the effect that at some time just previous to the accident, and while the driver of Sclienker’s wagon was delivering the package across the street, the defendant’s wrecking car was seen approaching about two hundred feet away; that Schenker’s driver returned, got on his wagon and turned toward the track to drive out; that at this time the defendant’s wrecking car was about fifty feet away, and that it was running “ pretty fast ” and was not sounding any gong or giving other warning. It does not .appear that at the time the car was fifty feet away there was any reason for supposing that the Schenker wagon was going upon the defendant’s track, or that there was any particular reason why the gong should be sounded; the point of the accident was not at a street intersection, but was in the middle of a block, where the right of the defendant was paramount, and it had a right to expect that the defendant Schenker would not recklessly drive in upon the track ahead of its car in broad daylight. Indeed, it does not clearly appear that there was anything to apprise the defendant railroad company of any danger in the premises until the wrecking car was within about fifteen feet of the point of the collision, at which time the defendant Schenker’s horses turned in upon the track, and the fact that the car was stopped within about eight feet after the collision goes to show that there was no reckless degree of speed on the part of the defendant’s car. But, assuming that the danger was apparent at fifty feet, there is no evidence that the car could have been stopped in time to have averted the accident, and the defendant was not bound to do things which it could not do, nor was it material that no gong was sounded so far as the plaintiff is concerned, for it appears by the evidence that both the plaintiff and his driver saw the approaching car, one of them when it was two hundred feet away, and the other when it was only fifty feet away, and they had ample time to warn the defendant Schenker’s driver of the danger if they had any reason to anticipate that there was danger, yet it does not appear that any of them made any sound, for the very obvious reason that they had no more reason for supposing that the defendant Schenker’s driver would drive in front of the approaching car and cause a collision than the defendant railroad company had. Any one familiar with the drivers of commercial and other vehicles in a great city knows that they are, by necessity, compelled to drive very close to cars vthich are being operated on the surface of the streets, and the mere fact that a team is headed in a general way in the direction of the railroad track does not call for the sounding of gongs and the giving of warnings; it is only when it is apparent that the driver is intent on going on the track, or that lie is obstructing the paramount rights of the railroad# that the warning is demanded. That is, the driver of a car is bound only to the exercise of reasonable care, and reasonable care does not demand that the motonnan shall anticipate that every driver is ear©'" less, and that he will, in disregard of his own duty to exercise reasonable care, drive in front of an approaching car, even though he should be headed in that direction; a team driven at a slow pace, and accustomed to work in a city, can be stopped in a very short space, and to say that a motofman is bound to sound his gong every time a team approaches the right of way would be to hold street railroad companies to a higher degree of care than is required of other vehicles, and this is not the law. As we read the evidence in this case,' the .proximate cause of the plaintiff’s injuries was the act of the defendant Schenker’s driver in going upon the track in front of the approaching car át a time when the car could not be stopped in time to avert the accident, and while it is true that we cannot, on this appeal, restore the rights of the plaintiff, we have no power to unjustly impose the burden upon the appealing defendant, who is not shown to have been negligent in respect to any duty which it owed to the plaintiff. If the defendant Schenker’s driver had. exercised that reasonable degree of care which the circumstances demanded, the accident would not have occurred ; there was no concurrent negligence proven on the part of the defendant, and the plaintiff having failed to appeal from the judgment dismissing the complaint as against the defendant Schenker is no reason why we' should now sanction an unjust judgment against the defendant who is now appealing to this court.

The judgment, in so far as it holds the defendant railroad company liable for damages, should be reversed and a. new trial granted, costs to abide the event.

Jenks arid Carr, JJ., concurred; Hirschberg, P. J., and Rich, J., dissented.

Judgment of the' Municipal Court, in so .far as it holds the defendant railroad company liable for damages, reversed, and new trial ordered, costs to abide the event.  