
    Andrew Mowbray, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    
      Negligence—collision at a street crossing, between a wagon and a street catr, injuring the driver of the wagon — verdict not excessive.
    
    In an action to recover damages for personal injuries sustained by the plaintiff while driving a team attached to a light covered carriage across a Street on which the defendant maintained a double-track street railroad, the evidence tended to show that the accident occurred at a street intersection and that the ' plaintiff was driving at a slow pace, and when within about 8 or 10 feet of the first track saw at a distance of from 175 to 200 feet a car on the second track approaching the intersection at a rapid rate; that as his horse reached the second track, he looked again and, seeing that the car was approaching him very fast, struck the horse with the whip but was unable to pass over the track in safety, the car striking the rear wheel of the carriage and causing him to receive the injuries of which he complained.
    
      Held, that the plaintiff had not been guilty of contributory negligence, as matter of law, and that a' judgment in his favor should be sustained;
    That as it appeared that the plaintiff, who was about fifty years old at the time of the accident, has been permanently injured and that his condition had been growing progressively worse since the accident, and that he had contracted doctors’ bills aggregating §600, a verdict for $3,500 was not excessive.
    Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of January, 1900, upon the verdict of a jury and also from an order entered in said clerk’s office on the 5th day of February, 1900, denying the defendant’s motion for a new trial made upon the minutes.
    
      John L. Wells, for the appellant.
    
      Charles J. Patterson, for the respondent.
   Woodward, J.:

This is an action to recover damages for personal injuries, alleged to have been sustained through the negligence of the defendant. There was a conflict of evidence as to the circumstances surrounding the accident, but if we. accept the statement most favorable to the plaintiff, who has the verdict of a jury, there can be' no doubt of his right to recover. The accident occurred at the intersection of Fulton and Carlton avenues in the borough of Brooklyn. The plaintiff was crossing Fulton avenue, driving a team attached to a light covered carriage. He was driving at a slow pace, described by the witnesses as a “ jog,” and when within about eight, or ten feet of the downtown track of the defendant’s railroad he looked to the westward and saw defendant’s car approaching at a rapid rate; it was at that time from 115 to 200 feet distant, and was approaching a crossing where the defendant owed the duty of having its car under control; the plaintiff continued on over the crossing ; just as his horses reached the uptown track he looked again; the car. continued to approach ¡— still traveling, as he says, very fast — upon the uptown track; at this point he reached for his whip and struck the horses for the purpose of getting out of the way, but he was a little too late, the defendant’s car striking the rear wheel of the ■carriage, throwing the plaintiff out and causing the injuries complained of in this action. It has never been held in this State, so far as we are aware, that it is negligent, as a matter of law, for a person driving upon the highways to attempt to cross in front of an advancing car under the circumstances described by the plaintiff and his witnesses, and it was, therefore, a question of fact to be determined by the jury. The rule of law was correctly stated by the court at Trial Term; there was no exception to' the charge, and the verdict of the jury upon this point is conclusive. (See Weidinger v. Third Avenue R. R. Co., 40 App. Div. 197.)

We are unable to concur in the suggestion that the damages awarded by the jury are excessive. The evidence warrants the conclusion that the plaintiff, a man about fifty years old at the time of the accident, has been permanently injured; that his condition has been growing progressively worse from the time of the accident. He has contracted doctor bills aggregating nearly $600, and a verdict for $3,500 is not so unreasonable as to warrant this court in interposing its judgment for that of the jury.

We do not discover that the defendant has any reason to complain of the ruling of the court in reference to the testimony of plaintiff’s physicians as to his condition at the time of the trial. The motion to strike out was not proper at the time it was made, and subsequently one of plaintiff’s physicians testified as to the nature and extent of the injuries received by the plaintiff in a subsequent accident. The trial court instructed the jury that they were not to take into consideration any injuries sustained by the plaintiff in the subsequent accident, and the evidence fully disclosed the condition of the plaintiff down to the time of the second accident. The trial appears to have been conducted with due regard to the rights of the defendant, and the judgment should be affirmed.

The judgment appealed from should be affirmed, with costs.

Judgment and order unanimously affirmed, with costs.  