
    John A. Freeman, Appellant, v. The Brooklyn Heights Railroad Company, Respondent.
    
      Collision between a wagon and a street car—what is a street intersection—it is not essential that a person come from, a cross street to give him, equal rights with a street car company at an intersection.
    
    In an action brought to recover damages for personal injuries sustained by the plaintiff it appeared that Hudson and Platbush avenues in the borough of Brooklyn open into Pulton street in that borough, from opposite directions. The most westerly point of the east line of Platbush avenue is directly south of the most easterly point of the west curb of Hudson avenue. The defendant operated a double-track street surface railway in Pulton street, and on the occasion of the accident the plaintiff was riding in a wagon driven by another person easterly along Pulton street on the southerly or east-bound car track. When a few feet west of the intersection of Fulton street with Hudson avenue the driver started to drive diagonally to the northeast corner of the two streets.
    
      At this time one of the defendant’s cars was approaching from the east on the northerly track-at a much greater speed than usual.- Such car was then eight or ten feet east of the easterly crosswalk at the junction of. the two-streets. When the wagon reached the westerly crosswalk, which was forty-six feet distant from the easterly crosswalk, the rear wheel thereof was struck by the car. An instant before the wagon was struck, the plaintiff jumped from the wagon toward the west, but the force of the collision threw the wagon upon him and he was injured. The motorman in charge of the car made no attempt to stop . it until it had come within twenty-five feet of the wagon.
    
      Held, that it Was improper for the court to direct a verdict in favor of the defendant;
    That the point where the accident occurred was a street intersection, and that the rights of the wagon in which the plaintiff was riding and of the defendant’s street cars were equal at that place;
    That the accident having happened at the .street intersection, the fact that the wagon had reached such intersection by being driven through Pulton street and had not been driven through Platbush avenue was not material.
    
    Woodward and Jenks, JJ., dissented.
    Appeal by the plaintiff, John A. Freeman, from a judgment of the County Court of Kings county in favor of the defendant, entered in the office of the clerk of the county of Kings on the 16th day of January, 1903, upon the verdict of a jury rendered by direction of the court, 'and also from an order entered in said clerk’s office on the 16th day of February, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      William F. Walsh [Frederick N. Van, Zandt with him on the brief], for the appellant.
    
      Isaac R. Oeland, for the respondent.
    
      
       See 85 App. Div. 24.
    
   Hooker, J.:

Plaintiff was being driven by another person easterly on Fulton street in the borough of Brooklyn,, upon the southerly or eastbound track of the defendant’s railroad. When .a few feet west of the westerly intersection óf Fulton street with Hudson avenue, the driver turned to take a diagonal course across from that point to the northeast corner of those- two streets. At the time the wagon was turning upon its new course, one of the defendant’s cars was approaching from the east on the northerly track, as the plaintiff’s witnesses say, at a speed much greater than is usual, and was at that time, according to their evidence, some eight or ten feet-east of the easterly crosswalk at the junction of these two streets. Upon the westerly crosswalk, a distance of forty-six feet from the easterly crosswalk, the rear wheel of the conveyance in which the plaintiff was riding was struck by this car; in an effort to save himself from hurt, the plaintiff jumped from the wagon towards the west an instant before it was struck by the car, but the collision threw the wagon upon him and he was injured. At the end of the plaintiff’s case the defendant rested without offering any evidence, and the court directed a verdict in its favor, from which direction and from an order denying plaintiff’s motion for a new trial he appeals to this court.

We think this case should have been submitted to the jury. From the map which is in evidence we may fairly assume that Hudson and Flatbush avenues, in the borough of Brooklyn, comprise what has been termed a continuous line of traffic. It is true that their direction is not identical, but it is within a few degrees, and although the opening of Hudson avenue into Fulton street .is not directly opposite the head of Flatbush avenue, yet the most westerly point of the east line of Flatbush avenue is directly south of the most easterly point of the western curb of Hudson avenue, and as to that rule of law which holds that street railroad companies and other users, of streets have equal rights at their intersection, this location must be held to be such an intersection. The case is similar to Brozek v. Steinway Railway Co. (23 App. Div. 623), where it was held that Honeywell street was a practical continuation of Blackwell street, and Bresky v. Third Avenue R. R. Co. (16 App. Div. 83), where Roosevelt street, in the borough of Manhattan, and Baxter street were held to be practically continuous. Under the doctrine of these cases the accident to this plaintiff •occurred át a street crossing, and the law applicable to such a state of facts must control. The parties had equal rights, and each was bound to respect those of the other. It is established by the evidence that no effort was made to stop defendant’s car, although it was going at a greater rate of speed than usual, until it had traversed one-half of the distance between the two crosswalks opposite the respective sidewalks of Hudson avenue. Although the car was seventy feet from the plaintiff at the time his wagon started to turn across the northerly track, the defendant’s agent made no attempt to stop it until it had approached to within twenty-five feet of plaintiff's conveyance, too late to avoid the accident. These facts, having regaid to the physical situation, presented the defendant’s negligence as a question for the' jury’s determination, and to direct a verdict against the plaintiff was error.

But it is urged that the law applicable to intersecting streets has no bearing upon the rights of the parties in this case,, inasmuch as the plaintiff had not come through Flatbush avenue at all, but was at all times in Fulton street, where the collision occurred. ■ I cannot believe such reasoning to be sound. The plaintiff was Within the general area of a street crossing, where the rights of users of that territory were equal, and it should not concern us in what manner he came into. the place or from what direction he approached it. In his lawful use of the highway he found himself there, and it cannot, in my opinion, be held to be the law that on one day if he came into the place from Flatbush avenue he had more comprehensive rights and privileges than on á day following; should he enter by way of Fulton street. The boundaries of an intersection of streets, inclose a spot peculiar to the law, in that no paramount rights are known there, and.no limitation of this doctrine should be indulged against a class of individuals Or vehicles that enter from any particular point. .

A reference, again, tó the map in evidence shows that had the plaintiff been proceeding in the usual manner northwesterly along the right side-of Flatbush avenue, across Fulton Street and into, the right side of Hudson avenue, his course would have been not . widely different from, that actually traveled; by plaintiff, from the point in the east-bound track of the defendant’s road, where, on the day of the accident, he turned n’ortheasterly. and pointed for the northeastern curb of Hudson avenue atid Fulton street. Had such been liis. course of travel, he would have crossed the west-bound track in Fulton street within about ten feet from the point in that track where he did actually cross. This analysis of the directions and distances seems, of itself, quite sufficient to refute the argument that the law of intersecting streets is inapplicable to the facts óf this case. ■ But, if notj suppose that a stranger had been, on the day of the collision, traveling from. Flatbush avenue into Hudson avenue along the route indicated above, and had been a few feet in advance of the plaintiff, they would both have been proceeding in the same general direction, the latter crossing the west-bound track at a point about ten feet west of that where the other crossed; and suppose further that defendant’s motorman, approaching from the east, had seen both and the direction from which each came. If the position I take is ' fallacious, he might properly have said, “that stranger, although' but a few feet from the plaintiff, both within the area of these intersecting streets, is entitled to the benefit of the rule allowing no one paramount rights in this place, for he came out of the intersecting street; but as against the plaintiff, my car has the better right here, for he turned into this district from Fulton street.” The point of ingress should not be held to affect the. rights of those who have occasion to -use such intersections of streets.

The judgment and order appealed from should be reversed and a new trial granted.

Hirschberg, J., concurred; Bartlett, J., concurred in result; Woodward and Jenks, JJ., dissented.

Judgment and order of the County Court" of Kings county reversed and new. trial ordered, costs to abide the event.  