
    Bertram Normand, Appellant, v. The Hudson Valley Railway Company, Respondent.
    Third Department,
    June 24, 1909.
    Railroadnegligence—'collision with wagon — erroneous nonsuit.
    Action to recover damages for injury to a. horse and wagon which were struck from behind by the deféndantís trolley car. The wagon was. proceeding on the defendant’s tracks in a village street at night, ;and though having a- body closed .at-the rear,, earned a lighted lantern plainly visible. There was evidence that the car was running at the rate of twenty-five miles an hour .and gave no signal of its approach until it struck the wagon. Before going upon the track the driver of the wagon had looked ánd failed to discover a car approaching. On all the evidence, held, that a nonsuit, was error.
    Although a street railroad company has a paramount right of way on its tracks, one may drive upon such tracks where they form part of a street, and has a . right to assume that he will not be run into from behind; without warning .and an opportunity to leave, the track:
    Appeal by the plaintiff, Bertram. Her maud, from a'judgment of the County Court of Washington county in favor óf the defendant^ entered in the office of the clerk of said county on the 8th day of February, 1909, upon the dismissal of the complaint by direction of the court at the. close of the1 plaintiff’s case on ¡.a trial at a Trial Term of said County Court. ■
    
      Erskine C. Rogers and John Van Valkenburgh, for the appellant.
    
      G. S. Raley and W. L. Kiley, for the respondent.
   Chester, J. :

The action was to recover damages to the plaintiff’s horse, wagon and harness caused by the alleged negligence of the defendant in running one of its trolley cars into the rear end of such wagon while it was being driven northerly on the defendant’s tracks on Main street in the village of Sandy Hill. ' The horse was being driven by an employee of the plaintiff. The wagon was a baker’s closed wagon, with no windows at the back. The driver was sitting in front of the wagon, and could not see out of the wagon at the rear. The accident happened after dark, but under the wagon there was alighted lantern in full view of any one approaching from the rear. There was an ordinance prohibiting running cars faster than six miles an hour on this street. Plaintiff’s testimony was to the effect that the car was running at the rate of twenty-five miles an hour; that there was no signal of its approach except almost simultaneously with the crash; that at the time the driver entered the tracks he looked out of the door of the wagon to see if any car was coming at a place where he had an unobstructed view of the track from the south about 1,200 feet; that he did not see any car or the lights of any car, and so drove onto the track; that he also looked out of his wagon again after he drove on the tracks, where looking behind he could see a quarter of a mile down Main street; that he drove along the track between 200 and 300 feet with two wheels about in the center between the rails and two wheels off on the right-hand side when he started to turn off; that the horse was ■ going on a jog; that as he was leaving the tracks the crash came, and the car went 150 feet beyond the point where it struck the wagon before it stopped; that the bridle and lines of the harness were broken, the panels of the wagon knocked in on the inside, the lights. broken; the panels smashed in the rear, and one wheel dished, and that the driver was knocked out of the wagon, but that it did not tip over.

The plaintiff was nonsuited at the close of his proof on the ground that he had failed to prove that the driver of the wagon was free from contributory negligence. The driver, had the right to us.e any part of the street, and to drive onto the tracks. The defendant had a paramount right over the driver to. the use of the tracks, and the driver was bound to leave the tracks promptly on hearing the signal of the approaching car. He exercised caution and care when he, entered upo n the tracks and looked back kf ter he entered. He received no signal to warn him of the approach of the car until almost simultaneously with the collision. Nothing that he could have done after hearing the signal would have prevented the injury. He had a right to assume that the car would not run into him .from behind without giving some warning of its approach and giving him a chance to get oil the'tracks. He also had a right to assume that the car would not approach him from the rear at a speed in excess of that prohibited by the ordinance. Giving as we must "on this appeal the most favorable view of which the plaintiff’s evidence is susceptible, a brief summary of which has been given, we think the learned trial court was not warranted in holding that the driver, under tlie circumstances presented here, was guilty of contributory negligence, as a matter of law, and that that question should have been submitted to the jury. (Barringer v. United Traction Co., 101 App. Div. 330.)

The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

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