
    Otis F. Mason, Respondent, v. The Metropolitan Street Railway Co., Appellant. Thomas L. Cornell, Respondent, v. The Metropolitan Street Railway Co., Appellant.
    (Supreme Court, Appellate Term,
    December, 1899.)
    negligence — Contributory negligence of the driver of a truck.
    The driver of a truck, who had a helper at its back to warn the motormen of following ears whenever the driver wished to turn from the side of the street and cross the tracks in its center, attempted to cross in front of a following car at a time when the helper said that the car was distant about forty-five feet, and that he then, first, waved his hand to the motorman and spoke .to the driver. It was not shown that the car could have been stopped in that distance.
    Held, that there was contributory negligence sufficient to preclude the driver from recovering for personal injuries caused by the collision, and that the owner of the truck could recover no damages for injuries to it.
    Appeal by the defendant from the judgment in each action in favor of the plaintiff, rendered in the Municipal Court, first district, borough of Manhattan.
    Henry A. Robinson, for appellant.
    Robert C. McCormick, for respondents.
   MacLean, J.

The plaintiffs brought these actions to recover damages, the one for injuries to person and the other to property, and by stipulation they were tried together.

Plaintiff Mason, in the employ of plaintiff Cornell, was driving a loaded, covered truck down the west side of Sixth avenue, between the line of elevated pillars and the sidewalk. He had with him a helper, on the back of the truck, one of whose duties, as the driver himself testified, was to notify motormen of following cars when he desired to cross their path. Arriving midway between Fourteenth and Fifteenth streets, the driver, because of other wagons in his path, started in upon defendant’s west roadway. Before starting in, he looked and saw a south-hound car at about .Fifteenth street, and, though pressed, could give no estimate of the distance intervening, nor did he testify whether the car was then in motion or stationary. As he testified, his “ horse was straight on the track going south,” when the car struck the left rear wheel of his wagon, doing the injuries complained of. The helper, at the time sitting on the back of the truck and directly facing the approaching car, testified upon his direct examination that when he first saw the car it was at Fifteenth street, coming at full speed, whatever that might be; that when the wagon turned, he thought the car was about seventy-five feet away; and that he then waved his hand to the motorman. IJpon cross-examination he testified that they were proceeding south nearer the curb than the tracks, being about ten feet distant from the latter; that when he first saw the car it was seventy-five feet away, and that the horse and wagon continued south, on a walk, for a distance of ten feet, before the driver started to turn east across the track; that after driving those ten feet, the car was then forty-five to fifty feet away, and that at that time he first made motion to the motorman and at the same time spoke to the driver. It nowhere appears that the motorman was in any way apprised- of the driver’s intention to cross his course until he was within forty-five to fifty feet of the wagon. No evidence was offered to show that the car could have been stopped within that distance, but rather the contrary appears, and that affirmatively. Cutting in ” under the circumstances of this case clearly evinced experiment, and so fault on the part of the plaintiff, sufficient to hinder recovery for defendant’s negligence, if any there was. Hamilton v. Third Avenue R. Co., 6 Mise. Rep. 382. The judgments should, therefore, be reversed.

Freedman, P. J., concurs, Levehtritt, J., taking no part.

Judgment reversed, and new trial ordered, with costs to appellant to abide event, in each case.  