
    MULLEN v. CENTRAL PARK & E. R. R. CO.
    (City Court of New York, General Term.
    November 25, 1892.)
    Negligence—Evidence—Province op Jury. In an action for personal injuries occasioned by a collision between defendant’s horse car and plaintiff’s cab, it appeared that the cab driver had stopped on defendant’s track to receive directions from plaintiff, when the collision occurred. Snow banks on each side of the street prevented the driver from stopping elsewhere, and he did not see the car, or have any warning of its approach. Held, that the questions of negligence and contributory negligence were for the jury.
    Appeal from trial term.
    
      Action by Fergus Mullen against the Central Park & East River Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.
    Argued before EHRLICH, C. J., and NEWBURGHER, J.
    Vanderpoel, Green & Goodwin, for appellant.
    W. Bourke Cockran, for respondent.
   EHRLICH, C. J.

The action was for negligently running.into the plaintiff’s cab, whereby he sustained damage, etc. Plaintiff’s driver had temporarily stopped on defendant’s track to receive directions, and, while receiving them, the defendant’s car ran into the cab, and did 'the-damage. There were snow banks on each side of the street, and the plaintiff’s driver had the right (notwithstanding defendant’s right of way) to drive his cab over that portion of the highway covered by the defendant’s tracks. He did not see the car, and had no warning of its approach. He was not unnecessarily obstructing the track, but receiving-orders in reference to his cab, which, on account of the snow, he could not receive nearer the sidewalk. The driver of the cab did not anticipate danger, and, as a rule, none was to be anticipated from a horse car, as there is always time for warning. At all events, the questions-whether (1) the defendant was guilty of negligence, and (2) the plaintiff free from it, were for the jury, being matters about which minds might differ. This case was one for the jury, the verdict satisfactorily sustained by the evidence, the damages not excessive, and no errors-committed which require a new trial. It follows that the judgment and order denying the motion for a new trial must be affirmed, with costs.  