
    James Paladino, Respondent, v. Staten Island Midland Railway Company, Appellant.
    Second Department,
    June 29, 1908.
    Railroad — negligence — collision with, vehicle driving on tracks — contributory negligence.
    A person driving on the tracks of a street surface railway owes the duty of reasonable care to look and listen for cars approaching from behind, and cannot rely wholly upon the motorman to give warning of his approach.
    While a motorman approaching a vehicle upon the track from behind must use reasonable care, he is not bound to assume that persons will drive upon the track without using some degree of care, and his duty is only to do what ordinarily prudent people would do under the circumstances. He has a right to assume that the way will not be blocked and that the preceding vehicle will leave the track in time to clear the way.
    Where it appears that the plaintiff, who was struck from behind by the defendant’s car while driving at a point between the intersections of streets upon the tracks, was familiar with the locality and the street was so wide that there was no necessity to occupy the track, and there is no evidence that he made any effort to ascertain whether a car was coming'before driving upon the track, and it appears that the motorman rang the bell and called to the plaintiff, a judgment in his favor will be reversed.
    Appeal by the defendant, the Staten Island Midland Railway Company, from a judgment of the Municipal Court of the city of Hew York, borough of Richmond, in favor of the plaintiff, rendez*ed on the 20th day of September, 1907, after a trial without a jury.
    
      Frank H. Innes, for the appellant.
    
      Arnold J. B. Wedemeyer, for the respondent.
   Woodward, J.:

The evidence in this case is not sufficient to support the judgment for damages for personal injuries sustained by the plaintiff, for the reason that there is absolutely no evidence of the exercise of any degree of care on the part of the plaintiff. The' defendant operates a double-track surface railroad on Montgomery avenue, in the borough of' Bichmond, and the plaintiff in this action liad at one time been employed by the defendant as a conductor upon this line, so that he was thoroughly familiar with the method of operating the cars. At the time of the accident the plaintiff was employed as a driver upon a covered wagon, and his own testimony is to the effect that he was driving his team in one of the defendant’s tracks; that at the point where the accident occurred there- is quite a steep hill, and that he had been driving in the track from the point Where the tracks entered Montgomery avenue; that he first discovered that he was in danger when some one hollered ” to him; that he looked around and found the car within ten or fifteen feet, of him that he tried to drive out of the track and that before he could get out the- car hit the rear wheel of his wagon,, the result being the slight injuries of which he complains. It-may be gathered from the evidence that the defendant’s lines enter Montgomery avenue - through a private cut, upon a curve, and that this curvé- is at the brow of the hill. There is absolutely no evidence that the. plaintiff made any effort to ascertain ydietiier a Car was coming or not before he entered upon the track; no evidence that during the time that he was driving on the track - he took any pains to discover whether he was in danger or not, aiid the thepry of the plaintiff seems to be that because he did not hear the motorman ringing his gong he had a right to Occupy the tracks for driving without the exercise of any care. to protect himself, though he knew the cars were being operated there; that there was a steep grade, and that Cars are not easily controlled upon such a grade. The street was wide enough to permit a wagon to pass on either side of the tracks, and although there was some evidence that there were teams on either side at or near the point of the accident, there was no evidence that the other track was obstructed, or that there was any necessity for the plaintiff to occupy the position in front of this car. ■ The accident did not occur at a street intersection, where, .the motorman was bound to have his car under' control, and the évi- ' dence in this cáse is overwhelming that the motorman began ringing his gong as soon as he entered Montgomery avenue, and that he con-tinned to ring it, and finally called to the plaintiff, in an effort to have him clear the track. The evidence is uncontradicted that the motorman applied his brakes vigorously in an effort to stop the car on this steep grade, and there was no evidence in the case to show that he might, in the exercise of reasonable care, have brought the car to a stop in time to have avoided the accident after it became apparent that the plaintiff did not intend to yield the right of way.

Whatever might be said of the question óf the defendant’s negligence, we are clear that the case does not present evidence from which it is proper to infer that the plaintiff exercised reasonable care for his own safety, and this, to constitute a justification for damages, must affirmatively appear. The plaintiff could not enter upon the defendant’s tracks under the circumstances here disclosed, paying no attention whatever to the rights of the latter or to his own safety, and impose upon the defendant the duty of saving him free from all damages. He owed the duty of reasonable care ; the duty of using his opportunities for looking and listening for the approach of a car. He could not rely wholly upon the motorman to give him warning of his approach, for while the motorman should use reasonable care to avoid accidents, he is not bound to presume that persons will drive upon the track without using some degree of care, and his duty is only to do what ordinarily prudent people would do under the circumstances. The motorman had a right to assume that the right of way would not be blocked; that the plaintiff would drive off in time to leavé the way clear, and the evidence in this case clearly shows that the motorman did more than this; he began ringing his gong as. soon as he came within sight of the plaintiff’s wagon, and while the plaintiff and some of his witnesses say they did not hear the gong, the evidence is conclusive that it was rung. This case comes squarely within the principle laid down by this court in Johnson v. Brooklyn Heights R. R. Co. (34 App. Div. 271), and the judgment should not be permitted to stand.

The judgment appealed from should be reversed, with costs.

Jenks, Hooker, Gaynor and Rich, JJ.,. concurred.

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