
    William Solomon, Appellant, v. Buffalo Railway Company, Respondent.
    
      Negligence—rule that at intersecting streets the rights of a street railway and of a passing vehicle are equal—what streets opening into a street occupied by a street surface railway are intersecting streets within this rule —charge as to the duty of the railway company.
    
    The rule that the rights of a street railway company and of the occupant of a passing vehicle are equal at street intersections applies where the ends of two streets, opening from different sides on the street on which the railroad is, are not exactly opposite to each other, but yet form substantially a continuous street. It also obtains where, at about the same point, three streets, one from the northwest, and another from the southwest, and another from the east, open into but do not cross a street running north and south upon which the street railroad is constructed, thus forming a triangular open space.
    Where a collision between a street car and a vehicle occurs in this triangular space, it is not material upon the question as to the respective rights of the street car and the vehicle, that the driver of the vehicle did not intend to pass along any of the streets running into the street upon which the railroad was constructed, but was endeavoring to cross from one side of the latter street to the other.
    A refusal to charge in such a case that the rights of the street car and of the vehicle at the point in question were equal, is not cured by a charge that it was incumbent upon the street railroad company “ to use all reasonable care and caution to avoid injury to the plaintiff (an occupant of the vehicle) or to any one else.”
    Appeal by the plaintiff, William Solomon, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 2d day of February, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of February, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Maulsby Kimball, for the appellant.
    
      Charles B. Sears, for the respondent.
   Spring, J.:

On August 22, 1901, the plaintiff, a guest of Lautz Brothers, & Co., was riding on their coach crossing the tracks of the defendant on Main street in the city of Buffalo when a collision occurred with a car, overturning the vehicle and injuring the plaintiff. Main street extends north and south and Scott street enters it from the east but does not cross. Lake and Hanover streets intersect with Main on the west, Lake coming in from the northwest and Hanover from the southwest. The intersection of these two streets with Main makes a triangular open space, the base of which is the westerly line of Main, and the northerly line of this flaring space extends beyond the projected southerly boundary of Scott street. Hanover street, composing a part of this extension at its conjunction with Main, is, therefore, northerly of the southerly boundary of Scott street extended. In the apex of the triangle made by Lake and Hanover streets the soap factory of Lautz Brothers & Co. is located. The tallylio owned by that firm, with its driver and with several guests started from this point for the Pan-American exposition. According to the story of the plaintiff’s witnesses the driver started his coach diagonally across Main street towards Scott street, but with the purpose of getting on the farther or right side of Main street in order to drive up on that side of the street. The defendant had two lines of track in Main street, the easterly used by north-bound cars and the westerly by those bound south. As the coach was nearly over the south-bound or nearer track of the defendant the rear was struck by one of defendant’s cars and the accident occurred. The plaintiff’s proof tended to show that the car was far enough away to afford ample opportunity to enable the drag to go over ahead of it without danger, but the car approached at an unusually rapid rate, was hot under the control of the motorman and he made no effort to cheek its progress. The version of the defendant’s witnesses was that the coach was próceeding along Main street, and unexpectedly and without warning, and when the car was too close to be stopped, the horses were turned and the passage over attempted; also that the motorman used his best endeavors to stop the car. Wherever the truth may lie as to these disputed facts, the collision occurred opposite the Moeller House, which is located at the southwest corner of Scott street at its junction with Main.

Whether the motorman at the time had his car under control, and whether he • was negligent or careful in its management, are questions of fact, and we should not disturb the conclusion reached by the jury except for an error in the charge which we deem fatal to the maintenance of the judgment.

At the close of the main charge the counsel for the defendant requested the court to charge: That if the jury believe that the accident took place opposite the Moeller House it would not be an intersecting street and the car had the paramount right of way.” The court in response charged as follows: The car had the paramount right of way in the street in so far as its rights to run its car over its tracks on that part of the street is concerned; it was incumbent, however, upon the defendant to use all reasonable care and caution to avoid injury to the plaintiff or to any one else,” to which the plaintiff’s counsel duly excepted. Opposite the Moeller House,” where the coach was at the time of the accident, was in the diagonal course from the starting point to Scott street.

It is well settled that at a street intersection the railroad company has no right superior to the passing vehicle. The rights of the two are equal. Each must use the street, the car crossing it and the vehicle passing over the tracks of the company. (O'Neil v. D. D., E. B. (& B. R. R. Co., 129 N. Y. 125, 129 et seq. ; Buhrens v. D. D., E. B. & B. R. R. Co., 53 Hun, 571; affd., 125 N. Y. 702; Johnson v. Rochester Railway Co., 61 App. Div. 12.) This rule obtains where the ends of two streets, joining the street along-which the street railway company has its tracks, are not exactly opposite to each other but substantially form a continuous street. (Brozek v. Steinway Ry. Co., 23 App. Div. 623; Bresky v. Third Ave. R. R. Co., 16 id. 83 [where one of the bisecting streets was fifty or sixty feet north of the one opposite] ; Mauer v. Brooklyn Heights R. R. Co., 87 id. 119; Freemam, v. Brooklyn Heights R. R. Co., Id. 127.) The crossing from Hanover and Late streets to Scott street 'comes within the principle in these cases. While they are not strictly one street or a continuation literally of either street, their termini at Main street are so nearly opposite that they are practically a continuous street. The reason for the rule exists in the present case the same as if Scott street extended across Main street..

It is strenuously urged that whatever error there may have been in the instruction of the court, that the car had the paramount right of way, was cured by the latter part' of the statement that it was incumbent upon the defendant “ to use all reasonable care and caution to avoid injury to the plaintiff or to any one else.” The difficulty with this proposition is that it involves no limitation upon the instruction of the superior right of way which the court accorded to the defendant. Wherever the driver may have been on the track the motorman was charged with the exercise, of “reasonable care” to avoid collision with him. “ Reasonable care ” is a relative term. What constitutes its exercise in the middle of a block may be entirely inadequate at a street intersection. The necessity for its exercise by the motorman, however, is present over his entire route, but in varying degree, depending upon circumstances and the absence or presence of peril to travelers in the street.

The fact that the driver of the drag was not intending .to pass along Scott street is of no importance. What may be the motive in crossing over the street car tracks is not pertinent when the traveler is within the territory where his rights are equal to those operating the car in the street. It is the locus in quo, the land which makes up the street intersection, that calls for the extra vigilance on the part of the motorman and affords the assurance of additional safety or protection to the passing traveler or vehicle rather than the fact that the wayfarer or conveyance is actually passing in front of an oncoming car. The likelihood of the street intersection being used by pedestrians or teams whose rights are on a par with those of the car at that place is what sustains the rule adverted to.

Of course, if the driver of the coach was passing up the westerly side of Main street,and suddenly, and without warning, veered his team to the right and over the tracks of the defendant, when the approaching car was too close to be stopped by the motorman by the exercise of proper vigilance, the rule mentioned would not be applicable.

The plaintiff had no authority over the driver of the coach. He was a guest on the middle seat, and at the time of the collision, through no fault of his own, was hit by an advancing car within the circumscribed district which made a part of the crossing connecting Scott street with the two streets opposite. There his rights were equal to those of the defendant and the instruction to the contrary was material error calling for a reversal of the judgment and order.

All concurred.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law only, the facts having been examined and no error found therein.  