
    Rawson. L. Wood, Respondent, v. Coney Island and Brooklyn Railroad Company, Appellant.
    Second Department,
    June 11, 1909.
    Railroad — negligence — collision — street crossing — master and servant— imputed negligence — contributory negligence.
    Where in an action to recover for injuries to personal property by reason' o£ a collision at a street crossing between plaintiff’s brougham and a car of the defendant, the uncontradicted evidence is that no bell was rung and no signal given of the approach of the "car, and it appears that the motorman" did not attempt to stop the car until it was eight or ten feet from the "carriage, there is sufficient evidence to sustain a finding of negligence on the part of the defendant. -
    The trial court might have "found from the motorman’s failure to attempt to stop the car until within ten feet of the carriage that he did not have it under proper control, in view of the fact that he was approaching, a street crossing.
    The rule that the negligence of the driver of a vehicle which contributed to the injury complained of, cannot be imputed to a third person riding in the vehicle, has no application where the relation of master and servant exists between them.
    It was the driver’s duty upon approaching a street where he knew cars were going up and down to exercise some care before attempting to cross over to see whether such cars were approaching and to avoid a collision with them.
    Where it appears that the driver of the carriage did not slacken the speed of his horses as he approached the corner; that he looked only in one-direction for cars and that had he looked in the right direction he would have seen the car when he was twenty-one feet from the track, and he states that he was not figuring on a car’s coming from the south; did not expect any to run on the track where the car which collided with the carriage was, although that track had been there for four years and he had frequently driven across it, and that he did not see the car until within two feet of it, he is guilty of contributory negligence, which will defeat a recovery by his master.
    It was not enough for the driver to say that he looked, if it is apparent that if he did look he did not look intelligently.
    Gaynor and Woodward, JJ., dissented, with opinion.
    Appeal by the defendant, the Coney Island and Brooklyn Bail-road Company, from a judgment of the Municipal Court of the city of New York, borough of Manhattan, in favor of the plaintiff, rendered on the 24th day of November, 1908.
    
      Edward D. Kelly, for the appellant.
    
      Charles L. Burr, for the respondent.
   Burr, J.:

This action is brought to recover for injuries to the brougham of the plaintiff by reason of a collision between it and a car operated by the defendant. The collision occurred on the 4th day of March, 1908, at the corner of Nassau and Washington streets in the borough of Brooklyn. Washington street runs nearly north and south ; Nassau street intersects it at about a right angle. In the center of Washington street there are two lines of track, the easterly track being used by cars going north toward the bridge entrance, and the westerly track by cars going south toward Fulton street. In addition there is "a third track on the westerly side of the street about two- feet from the curb, which on the day in question was also being used by cars going north toward the bridge. The servant of plaintiff who was driving his carriage was going through Nassau street in an easterly direction and approached the west side of Washington street at a speed of about eight miles an hour. Just before the collision he was driving in about the center of Nassau street. As he reached the corner, without checking the speed at which he had been driving, he started to 'cross the westerly track, lying near to the curbc which would be the first one that he approached. His horses and the front part of the carriage passed over in safety, but the car which was proceeding in a northerly direction struck the rear part of the carriage, crowding it up against a pillar supporting the bridge structure over Nassau street, causing the injuries complained of.

The defendant introduced no testimony but claimed in the court below and now claims that the plaintiff failed to establish its liability. Defendant’s negligence of which the plaintiff complains is that the car was operated at a high and dangerous rate of speed and that no signal was given of its approach. The allegation of the complaint respecting speed was not sustained. The evidence of plaintiff’s witnesses was to' the effect that the car was proceeding more slowly than the carriage and not to exceed five miles, an hour. There was uncontradicted evidence, however, that no bell was rung nor any signal given of the approach of the car, and there was also evidence received without objection that the motorman did not attempt to stop the car until it was eight or ten feet from the carriage. From this the court below might have found that he did not have his car under proper control, in view of the fact that he was approaching a street crossing. (Harvey v. Nassau Electric R. R. Co., 35 App. Div. 307.) There was sufficient evidence, therefore, in our opinion, to sustain the finding of defendant’s negligence. But to entitle the plaintiff to recover in an action brought for damages for injury to his property it was incumbent upon him to - establish by a fair preponderance of evidence that the driver of the carriage was free from negligence Contributing to the injury. He was plaintiff’s servant, acting within the scope of his employment. The rule that the negligence of the driver of a vehicle which contributed to the injury complained of cannot be imputed to a third person has no application when the relation of master and servant exists between them. (Brickell v. N. Y. C. & H. R. R. R. Co., 120 N. Y. 290; Robinson v. N. Y. C. & H. R. R. R. Co., 66 id. 11.) Upon' this branch of the case plaintiff failed. It was the duty of the driver as he approached this street upon which he knew vehicles and cars were passing up and down, before attempting to cross over, to exercise some care to see whether such vehicles were approaching and avoid collision with them. (Volosko v. Interurban Street R. Co., 190 N. Y. 206.) The testimony of the driver is to the* effect' that he did not slacken the speed of his horses as he approached the corner. He says that he was looking to his left toward the bridge, because he thought cars usually came up on the right-hand, track. He states that he was not figuring on a car coming down on the left-hand side of the street; that he was not looking for cars on that “ little track ” which was close to the curb. This track had been in the same place in which it was at the date of the accident for a period of at least four years, and the driver of the carriage had frequently driven across it. The driver also testified that he did not see the car until it was about two feet away from him. An attempt was made to prove that if he had looked he could not have seen it on account of a high board fence which was on the southwest corner of Washington and Nassau streets. It appeared, however, that the sidewalk on Washington street was eighteen feet wide, and that on Nassau fourteen or fifteen feet wide, so that when he was more than twenty-one feet away from the track he could have seen the car if he had looked carefully. One of the witnesses called for the plaintiff testified that he was standing on the corner and saw the car at a distance of seventy feet up the street. It is not enough for a witness to say that he looked if it is apparent that if he did look he did not look intelligently. (Dolfini v. Erie R. R. Co., 178 N. Y. 1.) It is quite clear that the driver did not look to the right, because he did not expect that a car would approach in that direction.

The judgment appealed from should be reversed and a new trial ordered, costs to abide the event.

Jenks and Rich, JJ., concurred; Gaynob, J., read for affirmance, with whom Woodward, J., concurred.

Gaynor, J.

(dissenting):

The plaintiff’s testimony is that he was coming into Washington street near the Brooklyn Bridge entrance on the leftliand side as you go to the bridge. The place was congested with cars and wagons, as it always is at that hour. As he came to the first car track he was looking down it, i. e., toward the bridge, to sée if any car was coming up, for cars come up on the righthand side as you come up, and go down on the other. It is said that he did not look up the said up track; but as cars did not run down on that side, but on the other, it could not be ruled as matter' of law that he was guilty of contributory negligence in not looking. A car did come down on that track and struck the rear, of his coach as he was clearing it. It seems by other evidence that the track on which he was hit was a third track which was used in what are called the rush hours of the day for certain cars which did not cross the bridge to switch into, and run down on for a certain stretch ; but this fact is not conclusive against the plaintiff for he does not seem to have known it.

Woodwabd, J., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  