
    Andrew O'Neill, Resp't, v. The Third Avenue Railroad Co., App'lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed May 8, 1893.)
    
    Negligence—Street railrpad—Right to use of track.
    In an action for injuries to plaintiff’s horse and wagon by a street car, the court charged that the horse was standing in the street where it had a perfect right to stand, and refused to charge that plaintiff’s team was bound, so far as it reasonably could, to keep off the tracks of the railroad company, so as to permit the free and unobstructed passage of the defendant’s cars thereon. Held, error; as the charge and refusal were equivalent to saying that plaintiff was not bound to use reasonable care in keeping off the defendant’s tracks.
    Appeal from a judgment rendered in the district court of the city of New York for the eleventh judicial district.
    
      Hoadly, Lauterbach & Johnson, for app’lt; L. P. Mingey, for resp’t.
   Bookstaver, J.

This action was brought to recover damages which the respondent claimed to have sustained bv reason of the negligence of defendant’s servants. The action was tried by the court with a jury. On the trial there was much and contradictory evidence given on both sides as to how the accident occurred which produced the injury to the plaintiff’s horse and wagon. At the close of the case the judge charged the jury both as to the facts and the law. He was requested, among other things, to charge that the plaintiff’s team, was bound, so far as it reasonably could, to keep off the tracks of the railroad company so as to permit the free and unobstructed passage of the defendant’s cars thereon. This the trial judge refused, but, on the contrary, had already in his charge said, “ this horse was standing in the street where it had a perfect right to stand.” This, together with the refusal to charge defendant’s request, was equivalent to saying to the jury that the plaintiff was not bound to use reasonable care in keeping off the defendant’s tracks; and this is contrary to the law applicable to such cases. A horse car can only run on the tracks provided for it, and cannot swerve to the right or left to avoid obstacles, which can readily be done by other vehicles. Hence, the courts have held that a public highway, upon which a railway track is authorized to be laid, is necessarily set apart for the use of the owners of the car and tracks to the extent that the public, in passing over that part of the highway, cannot interfere with the running of cars or with the track so as to unnecessarily hinder or delay the business of the railroad. Whitaker v. Eighth Ave. R. R. Co., 51 N. Y., 295; Fenton v. Second Ave. R. R. Co., 126 id., 626; 36 St. Rep., 385; Hegan v. Eighth Ave. R. R. Co., 15 N. Y., 380, and many other cases which may be cited.

We think this error sufficient, under the very contradictory testimony given in the case, and the somewhat improbable accounts of the accident given by plaintiff’s witnesses, to warrant us in reversing the j udgment and ordering a new trial, with costs to the appellant to abide the event.

Bischoff, J., concurs.  