
    Frank J. Clancy, Respondent, v. New York City Railway Company, Appellant.
    Second Department,
    November 16, 1906.
    Negligence — collision between surface car and vehicle — two versions of accident, both showing negligence.
    Although the manner in which an accident occurred is differently described by • different witnesses, yet if according to either version the defendant was negligent, the plaintiff is entitled to recover.
    The plaintiff’s servant attempted to drive across a street at a time when a surface car was one block away. The car, running at the rate of fifteen miles per hour, struck the rear wheel of plaintiff’s wagon, causing the death of the horse.
    
      Held, that the speed of the car justified a finding of negligence;
    That the driver was not guilty of contributory negligence, whichever of the two versions of the accident he' taken to be true, either in attempting to cross at right angles or in turning his team in the direction of the tracks in an effort to avoid a collision.
    Appeal by the defendant, the New York City Railway Company, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff.
    
      
      William E. Weaver, for the appellant.
    No appearance for the Respondent.
   Woodward, J.:

This is an action to recover damage's for an injury to. plaintiff’s horse, resulting in thé complete loss of the animal. If the plaintiff’s principal witness, his driver, is to be believed, the accident occurred under such circumstances that the defendant is liable, and'this would seem to be true if the accident occurred in the manner described by other witnesses, though the two versions materially differ. The accident, according to the driver, occurred as follows: The team was' on Fifty-seventh street crossing Third avenue. As the team came into Third avenue the defendant’s car was near Fifty-eighth street running at fifteen miles an hour. The team was going at the rate of four or five miles an hour and had crossed the north-bound track and was well over the south-bound track when defendant’s car hit ' the rear wheel of the truck and turned it around in .such a way that the horse’s leg was broken in the wreck. Other witnesses testify that the team did not reach the sotith-bound track; that the driver apparently anticipated a collision and turned his team sharply to the south, in the direction the car was going, and that the car struck the plaintiff’s wagon as it was running along in the same general direction. But in either event -the car was undoubtedly approaching a street irltersection at a rate of speed which the court Was justified in holding to constitute negligence, and th'e action of the driver, either in attempting to cross, where he apparently had ' plenty of time, or in turning his team to the -south in an effort to avoid the collision, would justify the conclusion of absence of contributory negligence, so the mere fact that the witnesses do not agree upon exactly what occurred does not defeat the plaintiff’s right to recover, provided the facts established by the evidence were such as to fix responsibility for the accident, and we are of opinion that the plaintiff established the necessary facts.

The judgment appealed from should be affirmed, with costs.

Present—Hirschberg, P. J., Woodward, Hooker, Rich and Miller, J J.

Judgment of the Municipal Court unanimously affirmed, with costs.  