
    James Smith, Appellant, v. Harry Bailey, Respondent.
    
      Oa/re required of one 'driving in a public street— injury to a, street' sweeper — what attention to his ca/re is not an admission of negligence.
    
    A street sweeper, employed in the public service, cannot exercise the same care while in the street as an individual would, but such a sweeper is bound to use reasonable care to avoid being run over.
    Persons driving along public streets are bound to use reasonable diligence for the purpose of seeing those who may be rightfully in the streets, whether as pedestrians, persons working in the streets, or persons in vehicles.
    The fact that the driver of. a wagon, who has run down a street sweeper, follows ■ him into a drug store, tells him that, if he is hurt, he would be glad to do any- ; thing for him, subsequently pays him ten dollars at his house, and asks him if he can do anything more for him, does not amount to an admission by the driver that he has been guilty of negligence.
    Appeal by the plaintiff, James Smith, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on.the 2oth day of February* 1896, 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 24th day of February, 1896, denying the plaintiff’s motion for a new' trial made upon the minutes.
    
      LLermon LL. 'Shook, for the appellant.
    
      Louis JET. LLahlo, for the respondent.
   Van Brunt, P. J.:

This action is brought to recover damages alleged to have been sustained by the plaintiff through the negligence of the defendant, in having driven over him while he was at work in sweeping the north crosswalk of Seventh avenue at the corner of One Hundred and Thirty-second street. The evidence shows that the accident occurred ■about three o’clock in the afternoon. The plaintiff was at work for the city of New York, in the department of public works, sweeping the- north crosswalk of - Seventh avenue at the corner of One Hun- . dred and Thirty-second street. He Avas SAveepiiig on the Avest side and Avas facing south, being about three or four feet from the west -curbstone. Hence, he had his back toAvafds the teams which were ■coming upon the right-hand side of the avenue. There Avere a great many vehicles around there at the time, according to one of the witnesses, about twenty-five. The defendant, who was driving a horse and wagon at a moderate gait upon the west side of the ■avenue, struck the plaintiff and knocked him down, and his AAragon ran over him. The defendant testified that he was driving down the avenue, and that just as he got opposite the plaintiff, the plaintiff stepped back to avoid another team going • on the avenue and went ■directly in front of the defendant’s horse and Avas knocked down and' run over before the defendant could stop. After the accident the defendant drove around the corner, let the lady out who was driving with him, and then turned and came back. The plaintiff Avas ■carried into a drug store, and the defendant saw him there, and told him that if he Avas hurt in any way, anything he could do for him he would be glad to do. ■ A doctor Avas there Avho dressed the plaintiff’s wounds, and subsequently the defendant went to the plaintiff’s house and paid him ten dollars, and asked him if he could do anything more for him. The plaintiff declined any further assistance, and the next thing the defendant heard from him was Avhen some one came to his office and asked if he Avas going to settle Avith Smith.

The questions arising upon this state of facts are as to whether there was any proof of the defendant’s, negligence and whether the plaintiff showed himself free from contributory negligence — or, rather, whether there Avas evidence upon these subjects to go to the j“7-

Undoubtedly those persons who are engaged upon the streets in the public service cannot exercise the same diligence in getting out of the way of- passing vehicles. as those persons can Avho are simply -crossing the streets and avenues; and it cannot, be expected that they should, because if their time were taken' up. by looking out for coming vehicles, it would be impossible for them to carry on _ their work. They cannot, however, be reckless. They are bound to use reasonable ■ care in seeking to avoid the dangers by which they are surrounded.

It is claimed upon the part of the defendant that the plaintiff was guilty of negligence in facing south when he knew that' his back would be to all the vehicles which came in that direction. This, we think, however, was a question for the jury as to whether the plaintiff exercised that degree of care under the circumstances which an ordinarily prudent man would exercise, and that it was not a matter of law upon the facts of this case, but one which the jury were called upon to determine. If it were necessary in the prosecution of his business that he should be in that position, of course no negligence could be imputed to him. If by reasonable care he could have put himself in a position where he could protect himself from dangers, of this description, then he was bound to use this care, having a. view to the work which he was engaged in prosecuting. We think,, therefore, that this question was one which the jury were called upon to consider, and which they had a right to determine.

The next question is as to the negligence of the defendant. It. seems to us that that question is involved in the determination of the correctness of the. story of the defendant as' to how the accident happened. Persons driving along the streets are bound to use their-eyes for the purpose of seeing those who may be rightfully in the streets, whether as pedestrians, persons working in the streets or persons in vehicles. The plaintiff was rightfully in the street, his public work compelled him to be there, and' it was the duty of the defendant to use reasonable diligence in seeing and avoiding him. This he claims to have done. He says, as already stated, that he saw the plaintiff just as he was passing him; that the plaintiff stepped back to avoid another team and went directly in front of the defendant’s wagon, and that it was impossible for the defendant to stop before the plaintiff was knocked down and run over. In this evidence the defendant was supported by the lady who was riding with him; and, if this were the case, there Was, of course, no ground upon which the defendant could be held guilty of negligence. The plaintiff, upon the other hand, states that he did not step back. The other witnesses who were examined upon the trial do not seem to throw any light upon this point. There was, therefore, an issue between the defendant and his witness and the plaintiff as to whether lie stepped back or not, and this was a question for the jury to determine.

It was claimed that the interest whitih the defendant manifested in the injuries of the plaintiff was an admission of negligence upon his part. YVe cannot find anything in the record which would ■ justify any sutih inference. Upon the contrary, all that the defendant did after the happening of the accident was that which any' kind-hearted man would have done to one who had been injured by him without, fault upon his part.

Upon the whole case we think that the questions of the negligence of the defendant and the contributory negligence of the plaintiff should have been submitted to the jury, and that the court , could not determine those issues for itself.

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

Barrett, Rumsey, Williams ánd Patterson, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event. '  