
    WARREN v. UNION RY. CO. OF NEW YORK.
    (Supreme Court, Appellate Division, First Department.
    January 5, 1900.)
    Street Railroads—Negligence—Dismissal or Complaint.
    Plaintiff’s evidence tended to establish that he was seated in a grocery wagon, the hack and sides of which were inclosed by oilcloth curtains, and was driving along a certain street, each side of which was either out of repair, or incumbered with rubbish, so that the passable part of the roadway ran so close to defendant's car tracks that the wheels of plaintiff’s wagon nearest the track were only about a foot from it; that while so driving along said roadway a car of defendant came up rapidly from behind, without warning, and struck plaintiff’s wagon, throwing it over and seriously injuring him. Held, that a dismissal of the complaint at the close of plaintiff’s testimony was error.
    Appeal from trial term, New York county.
    
      Action by Richard Warren against the Union Railway Oompany of • New York. Judgment for defendant, and plaintiff appeals. Reversed.
    Argued before VAN BRUNT, P. J., and RUMSEY, PATTERSON, O’BRIEN, and INGRAHAM, JJ.
    E. A. Taliaferro, for appellant.
    Alfred Lauterbach, for respondent.
   RUMSEY, J.

The action was brought to recover damages for injuries suffered by the plaintiff because of a collision between the wagon on which he was riding and a car of the defendant. The «evidence would have warranted the jury in finding: That the plaintiff, seated in a grocery wagon, the back and sides of which were in•closed by oilcloth curtains, was driving along White Plains avenue, in the city of New York. The defendant’s track was laid in the ■center of the street. Each side of the street was either out of repair, or incumbered with rubbish, so that the passable part of the roadway ran so close to the defendant’s track that the wheel of the plaintiff’s wagon nearest the track was only about a foot from it. As he was driving in that place, a trolley car of the defendant ■came up rapidly from behind, without any warning, struck the wagon in which the plaintiff was sitting, threw it over, and inflicted ■serious injury upon him. . At the conclusion of the plaintiff’s evidence, which tended to establish the foregoing facts, the complaint was dismissed by the trial court. This is clearly error, within the principles established in the case of Rooks v. Railroad Co., 10 App. Div. 98, 41 N. Y. Supp. 824. A few of the rulings of the court with Tegard to the admission of evidence, which were excepted to, were •erroneous; but, in view of the conclusion we have reached as to the merits, it is not necessary to consider these separate rulings.

The judgment and order must be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.  