
    The Central Brewing Co., Appellant, v. The New York City Railway Co., Respondent.
    (Supreme Court, Appellate Term,
    February, 1906.)
    Street railways — Operation — Actions — Sufficiency of evidence; Questions for jury.
    Where, in an action to recover for injuries to a truck owned and driven by plaintiff, it appears that, on a day which was clear and bright, the team had been brought clear into the side street and the truck had been partly turned in the same direction and was about to leave the car track entirely, when one of defendant’s street car s ran into the truck, overturning and damaging it, the circumstances raise a presumption of negligence on the part of defendant and justify the submission of the case to the jury.
    Appeal by the plaintiff from a judgment in favor of the defendant rendered in the Municipal Court of the city of Hew York, seventh district, borough of Manhattan.
    Mark Goldberg (Louis Wertheimer of counsel), for appellant.
    William E. Weaver, for respondent.
   Scott, J.

The evidence showed that a heavy truck belonging to plaintiff was driven on to defendant’s downtown, track in Lexington avenue at Sixty-second street. It proceeded safely at a walk down the avenue, on the westerly south-bound track, until it arrived at Sixty-first street when it attempted to turn to the westward into Sixty-first street. The horses had béen brought clear into the side street, and the truck had been partly turned in the same direction and ,was about to leave the track entirely, when a south-bound car, belonging to the defendant, ran into the truck overturning and damaging it. The court dismissed the complaint upon the ground that plaintiff had failed to show the defendant’s negligence, or a lack of contributory negligence on the part of the driver of the truck. In our opinion, the circumstances created such a presumption of negligence on defendant’s part that it should have been put to. its defense. There have been very many cases in which a railroad company has been held free from fault for a collision between a car and a vehicle driven on to the track; but there is a vast difference between such a case, and one in which the collision occurs while the vehicle is leaving the track. In the present case, the truck had gone on to the track safely and had proceeded along it safely for a whole Hock. The day was clear and bright and the inference is that the motorman must have seen the truck in front of him. To turn off the track did not create any more dangerous situation than had existed before the truck began to turn off. Assuming that the motorman saw the truck on the track ahead of him, if it had stayed on the track he would not have been justified in running in to it, and the fact that it attempted to get out of his way did not justify him in so doing. It is said that the car had the paramount right of way so far as the track was concerned. If this is so, the truck should have got off the track and it was doing this when it was overturned. It is urged that the driver did not look back before he turned off. It is not apparent that it would have done any good if he had. If he had been driving .on to the track and thus passing from a position of safety to one of possible danger, he should, of course, have looked out for the car.. But he was driving off the track from a position of possible collision to one of safety. The act of turning off did not increase the danger and, if the driver had looked hack and seen the car near him, he could have done only what he did, unless he had stayed on the track directly in the way of the approaching car. We are of opinion that enough appeared to justify the submission of the case to the jury.

Giegebich and Gbeenbaum, JJ., concur.

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