
    The New York Bread Co., Respondent, v. The New York City Railway Co., Appellant.
    (Supreme Court, Appellate Term,
    December, 1904.)
    Collision—When question of negligence for the jury.
    Plaintiff’s wagon being driven diagonally across defendant’s track was struck and injured by defendant’s car running in the same direction. It was shown that the driver had looked behind him before he left the curb and saw the car some distance to the rear moving at a moderate rate of speed. It was also shown that in order to cross the tracks the defendant’s wagon would only have had to travel a distance of from twenty to fifty feet. There was also evidence that the motorman failed to ring a bell.
    Held, under the circumstances, the question of negligence was one of fact for the jury, not one of law.
    (MacLean, J., dissented.)
    
      Appeal by the defendant from a judgment of the Municipal Court of the city of New York, eighth district, borough of Manhattan, rendered in favor of the plaintiff.
    Henry W. Goddard and William E. Weaver, for appellant.
    James H. Simpson, for respondent.
   Freedman, P. J.

One of the plaintiff’s wagons was standing in front of a store on the west side of Second avenue between Fifty-fourth and Fifty-fifth streets. It was facing south, and was quite near the southerly end of the block, viz., about forty feet north of Fifty-fourth street. The driver came out of the store, walked to the curb where the wagon stood, got upon the wagon and drove in a southerly direction diagonally across Second avenue. He intended to go east through Fifty-fourth street. After the wagon had proceeded a distance of from fifteen to twenty feet it was struck by one of defendant’s south-bound cars, pushed against an elevated railroad pillar and injured, and for the damages occasioned by such injury this action was brought.

Plaintiff had judgment. It appears from the testimony that before the driver left the curb he looked north and saw that the car which struck him was then north of Fifty-fifth street “ moving at a moderate rate of speed.” The car struck the front part of the wagon. It further appears that in order to fully clear the defendant’s track it would only have been necessary to traverse a distance of from twenty to fifty feet, and there was testimony to the effect that at the time the front wheels reached the track the car was from fifty to one hundred and twenty feet distant. There was also evidence from which it might be said the motorman rang no bell. Under the circumstances the questions of negligence were those of fact and not of law; the facts in the case are materially different from those in Cosgrove v. Interurban St. R. Co., 84 N. Y. Supp. 885, and Groening v. Interurban St. R. Co., 88 id. 355.

Judgment affirmed, with costs.

Gildersleeve. J., concurs.

MacLean, J. (dissenting).

The jury found for the plaintiff upon its claim for injury to one of its wagons in a collision with a car, but under the charge of the learned court and the applicable law the defendant should have had the verdict, for the driver established his own contributory negligence by testifying that, coming out of a store, the third building north of Fifty-fourth street on Second avenue, and crossing the sidewalk, he saw a- car at Fifty-fifth street coming south at a moderate rate of speed, then he jumped upon his wagon so nearly along side of the curb that he could make the step from the curb, which was fifteen to twenty feet from the westerly rail of the south-bound track, his horse started to go diagonally toward and across the track, and so when the wagon had gone about twenty or, twenty-five feet and entered upon the track it was struck.

The last look of the driver at the car was when he was upon the sidewalk. “ Having looked in the direction in which the car proceeded but once, the plaintiff failed in his very evident duty in proceeding to cross the track without again looking.” Cosgrove v. Interurban St. R. Co., 84 N. Y. Supp. 885; Groening v. Interurban St. R. Co., 88 id. 355. There was nothing so far as appears to obstruct the driver’s vision or distract his attention. Of course he was just as much obligated to look out for his own safety as the defendant was to prevent his being injured. While the law requires the defendant to move its cars with care, to the end that persons crossing the street may not be injured, it also requires such persons to exercise an equal amount of care to prevent being injured. If a person using the street fails to exercise this care and is injured, he cannot recover from the defendant * * * inasmuch as his own negligence contributed to it.” Little v. Third Ave. R. R. Co., 83 App. Div. 330.

The judgment should be reversed.

Judgment affirmed, with costs.  