
    Seabastian W. Ackerman, Plaintiff, v. Johnston Livingston, Defendant.
    (City Court of New York, Trial Term,
    January, 1908.)
    Negligence: Contributory negligence — Persons in street: Actions — Trial and review — Questions for jury — Contributory negligence.
    In an action to recover damages for personal injuries to plaintiff by being struck by a truck driven through the street, where it appears that the truck was' approaching between the car tracks in the street, going in a southerly direction; that plaintiff when struck was west of the westerly track, from three to five feet away from the track; that he had backed his horse and wagon against the curb, with the horse turned slightly toward the south; that he looked around and saw the truck that struck him 40 or 50 feet away on the other side of the street on the farther track, coming slowly in a southwesterly direction; that the plaintiff got off his wagon and put a blanket over his horse’s head; that he did not look again until the truck was from two to three feet away, coming "faster; that he dove underneath the horse’s head to get away, but the pole of the truck came toward him, struck him in the side and knocked him down; that the day was clear and plaintiff’s sight and hearing were good and there was nothing between him and the approaching truck; and where there is evidence that, although the truck was coming in his general direction and he was able to see it had he looked, yet he was in a position of safety and would not have been struck had not the truck changed its direction, the question of the plaintiff’s contributory negligence was properly submitted to the jury for determination.
    
      Motion to set aside a verdict and for a new trial.
    Feltenstein & Rosenstein, for plaintiff,
    Carter, Ledyard & Milburn, for defendant.
   Wadhams, J.

The motion is to set aside the verdict rendered in favor of the plaintiff and for.a new trial. In the cases cited by the defendant the injured party failed' to look after placing himself in a position of obvious danger. The approaching object in those cases was a car moving upon tracks in a certain direction, from which the car in its natural course would not deviate and pursuing which the car must necessarily come in contact with the party injured. In the case at bar the approaching object was a wagon. There is evidence to sustain a conclusion by the jury that had the wagon pursued the course in which it was going when first observed by the plaintiff, some forty or fifty feet away, it would not have come in contact with him. There is evidence that the wagon was approaching upon or between the tracks in West Broadway going downtown; that the plaintiff when struck was west of the westerly track, from three to five feet away from the track. The plaintiff testified that he backed up his horse and wagon against the curb, with the horse turned slightly down town, toward the south; he looked around to see if there were any cars or trucks near him and saw the express wagon about forty or fifty feet away on the other side of the street; there were two tracks, the northerly track was on the east side of the street; when he first saw the truck it was on the northerly track, going in a southwesterly direction, coming slowly; he got off his wagon and put a blanket over his horse’s head; he did not look again until the truck was from two to four feet away, coming faster; he dove underneath the horse’s head to get away, but the pole of the truck came toward him, struck him in the side and knocked him down. There is evidence that it was a bright, clear day; that plaintiff’s eyesight and hearing were both good, and that there was nothing between the plaintiff and the approaching truck. There is also evidence that the truck was coming toward Mm. Although the truck was coming in his general direction and he was able to see it had he looked, there is evidence upon which the jury were at liberty to find that he was in a position of safety and would not have been struck had not the truck changed its direction. The plaintiff upon cross-examination testified: Q. Had it changed its direction any — had the wagon changed its direction any? A. The truck? Q. Tes. A. Coming more toward me, more on the outside.” A witness testifies: “ The wagon was coming down; it was between the two tracks; he wanted to swing-further west as he swung around; he swung too short and hit the man as he was standing at the horse’s head. The pole hit him. Q. He turned west? A. Tes, sir; he had to get off the track. Q. In turning west, what occurred? A. He swung short and as he swung he hit the man.” Another witness testified: I see a man standing there fixing up something about his horse’s head; he wanted to get away from there; so the wagon came and the horses turned toward Mm and the pole hit the man and he fell down and the wheels ran over his arm. Q. As it got near the man what did it do? A. The horses turned,around toward the man, to the right, and the pole hit the man.” Hpon this evidence the court is' unable to hold that plaintiff was guilty of contributory negligence as a matter of law. The question was properly submitted to the jury for determination.

Motion denied.  