
    Joseph Goldkranz, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Negligence—collision between a wagon and a street cm' — what proof does not establish negligence on the part of the street ear company or the absence of contributory negligence. ' •
    In an action brought to recover damages for personal injuries sustained by the plaintiff while driving a wagon through the streets of the city of New York at two o’clock in the morning, in consequence of a collision between the Wagon and one of the defendant’s street cars, the evidence tended to show that the wagon was being driven along a street which intersected the street on which the defendant’s railroad was operated; that the wagon was unlighted, while
    - the car was brilliantly lighted, and that both vehicles were moving rapidly.
    The plaintiff admitted that he saw the car and could have stopped his wagon and have allowed the car to pass. He, however, made no effort to stop or avoid the car, thinking that he could pass in front of it in safety.
    There Was no evidence that,'when the plaintiff drove upon the track in front of the approaching car, the motorman could have stopped the car in time to avoid the accident.
    
      Held, that the evidence did not warrant a finding that the defendant was guilty of negligence or that the. plaintiff was free from contributory negligence, and that a judgment entered upon a verdict in favor of the plaintiff should be reversed.
    Laughlin, J., dissented. . . ,
    
    ■ Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21th day of June, 1903, upon the verdict of a jury for $225, and also from an order entered in said clerk’s office on the 23d day of June,' 1903, denying the defendant’s motion for a new trial made upon the minutes.
    
      Bayard H. Ames, for the appellant.
    
      Henry W. Unger, for the respondent.
   Ingraham, J.:

On the morning of September 23, 1900, the plaintiff, who was driving a wagon to the Cortlandt street ferry, proceeded from Broadway along Cortlandt street to the ferry. He testified that when he reached. Church street, upon which the defendant operates a railway, he stopped and looked up and down; that he then saw a car coming down at a speed of about five miles an hour, about half a block away from him; that he thought he could pass without being struck, but that the car came at full speed and struck his hind wheel; that he was thrown off the wagon on Church street, and received injuries for which he has recovered a judgment; that when he was struck his wagon was going about five or six miles an hour. Upon cross-examination he testified that he was driving to catch the two-" ten boat with a bundle of newspapers that had not been taken by a previous wagon ; that he did not stop when he got down to Church street; that he did not change his speed at aligning down Cortlandt street, driving five or six miles an hour all the way down; that there was no other vehicle in the street; that he did not remember whether the car was right upon him when he saw it coming down ; that he did not really know how far he was from Church street when he first saw the- car, but that after he got into Church street and passed the line of the elevated railroad stairs he saw the car; that he had partly gotten across the uptown track when he saw the first car; that he was going fast and could have stopped his horse and let the car go by, but instead of doing that he thought he could get over and clear the car. Hpon redirect examination he testified that he was going down Cortlandt street; that he got near the corner; that he looked up and did not see anything; that he looked down and saw a car coming about a half block away; that he thought he could pass it without getting struck; that it was a downtown car going to South ferry, coming from uptown, and that he had got to about the first track when he looked uptown and saw the car. The plaintiff also called a witness who was in the street at the time of the accident, and who testified that he was coming from New Jersey and going towards the Brooklyn bridge, walking on the uptown ■ side of Cortlandt street; that as he approached Church street he heard a car coming in the distance; that he crossed Church street and saw a World wagon driving down Cortlandt street towards the ferry from Broadway; that the wagon was going six or seven miles an hourthat he stood on the corner and saw the wagon crossing Church street and the car hit him; that the car was going at a pretty rapid rate of speed; that he heard no bell rung; that the car struck the wagon .between the two wheels. Upon cross-examination the witness said that the car first attracted his attention; that when he got to the corner of Church street he first saw the car that was at that time about a block away; that at that time the wagon was up Cortlandt street about half a block; so that the car was a block away and the wagon about half a block; that after the witness crossed the street and got on the northeast corner he stood for a moment and turned around to watch what was going to happen; that he saw thé wagon coming down pretty fast and the car coming at a pretty fair speed; that it then occurred to him that there would an accident, seeing the two objects there so close and neither one slowing up; that there were no lights on the wagon, but that lights were on the car; that the driver of the wagon did not change his speed, he went on at the same pace all the way; that the wagon was in plain view and the driver drove right ahead at the same speed, looking straight ahead, and the result was that thé . two came together and the driver was .thrown out; that when the horse and wagón got to the first car track, going down Cortlandt street, the car had got nearly to Cortlandt street; that the car Was right opposite the witness on the corner.

Upon this evidence the case was submitted to the jury, the defendant offering no evidence.. We think there was no evidence to justify a finding that the plaintiff was free from contributory negligence. He drove down the street at a fast rate in front of the approaching car. He saw the car coming and made no effort to stop or avoid the car. He says he thought he could get over in time, but in this he was mistaken; and it was this mistake that caused the accident. Nor does the evidence sustain the finding that the defendant was negligent. There is no evidence to show that when the plaintiff drove upon the track in front of the approaching car the motorman could have stopped the car to avoid the accident or that the car was then at such a distance from the wagon that it was possible to stop it; it, therefore, appears that the plaintiff was grossly negligent in driving in front of this rapidly approaching car when, according to his own story, he could have stopped his wagon .and allowed the car to pass. The car was brilliantly lighted. The plaintiff was carrying no lamp, or light of any kind; it was two o’clock in the morning; and in the absence of evidence to show that the car was in such a condition that the motorman could have stopped it after the plaintiff drove upon the track or was in a position of danger and thus avoid the collision, there was no ground for a charge of negligence against the defendant.

It follows that the judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., Patterson and Hatch, JJ., concurred ; Laughlin, J., dissented.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  