
    REISS v. METROPOLITAN ST. RY. CO.
    (Supreme Court, Appellate Term.
    June 28, 1899.)
    Street Railroads—Driving Across Track—Contributory Negligence.
    Where a driver of an express wagon attempted to cross car tracks on a street where the company’s cars had the right of way, and when a car was only 100 feet away, and, finding his mistake, attempted to get over by whipping his horse, but too late, he was guilty of contributory negligence.
    Appeal from municipal court, borough of Manhattan, Ninth district.
    
      Action by Herman Reiss against the Metropolitan Street-Railway Company. There was a judgment for defendant, and plaintiff appeals.
    Affirmed.
    Argued before FREEDMAN, P. J., and MacLEAN and LEVEN-TREDT, JJ. i
    Joseph I. Green, for appellant.
    Henry A. Robinson, for respondent.
   MacLEAN, J.

It appears, from the statements of the plaintiff’s one witness of the occurrence, a friendly passenger on the seat with the driver of a large covered express wagon, that the plaintiff’s driver attempted to cross the car tracks of the defendant on Second avenue between the streets where the defendant’s vehicles had the right of way, and when a car was only 100 feet distant. The driver, finding out his mistake, attempted, by whipping his horses, to get over in safety, but too late. The testimony exhibits no evidence of fault on the part of the motorman or other servant of the defendant, but does show the imprudence of the driver of the plaintiff. Meyer v. Railroad Co., 9 App. Div. 79, 41 N. Y. Supp. 92. The judgment should be affirmed, with costs.

Judgment affirmed, with costs.

FREEDMAN, P. J., concurs. LEVENTRITT, J., takes no part.  