
    Michael J. Smith, Respondent, v. The American Society for the Prevention of Cruelty to Animals, Appellant.
    (New York Common Pleas—Additional General Term,
    February, 1894.)
    Am ambulance is entitled to the right of way in a street, and it is the duty of owners or drivers of other vehicles, upon seeing it approaching on the tracks of a railway, to deviate from their course sufficiently to enable it to, turn out of the track to avoid collision with an approaching car on the same track.
    In an action for damages occasioned by a collision with defendant’s ambulance, it appeared that the ambulance was going uptown, and, to avoid a car which obstructed it, turned into the west track; that, at this time, plaintiff's wagon was coming downtown and about three feet from said track; that the ambulance was in full view of plaintiff's driver, who kept on his course; that to avoid an approaching car when near plaintiffs wagon, the driver of the ambulance attempted to turn out of the track, but one of the wheels caught in the rail and swung the ambulance against plaintiffs wagon. Held, that the collision was the fault of plaintiffs driver, and not of the driver of the ambulance.
    Appeal from a judgment for plaintiff, rendered by the District Court in the city of Kew York for the eighth judicial district.
    Action to recover damages for injuries to plaintiff’s wagon sustained in a collision with defendant’s ambulance through the alleged carelessness of the driver of the latter.
    
      James F. Higgins, for respondent.
    
      Horace Hussell and Jabish Holmes, Jr., for appellant.
   Bischoff, J.

It is indisputable upon all the evidence that the collision of which plaintiff complains was the result of recklessness or carelessness on the part of the person in charge of his wagon at the time.

Shortly before the accident defendant’s ambulance was proceeding uptown in tlie uptown or easterly car track on Broadway, between Forty-eighth and Forty-ninth streets, and immediately in the rear of a car. At this time plaintiff’s wagon was coming downtown on the right side of the center of the roadway and about three feet distant westerly from the westerly rail of the westerly or downtown track, and in the full and unobstructed view of the approaching ambulance. Intending to get out of the way of the car by which the ambulance’s course was obstructed, the driver of the latter crossed the roadway into the westerly or downtown track, the wheels of the ambulance projecting about a foot beyond the rails, along which he continued in an uptown direction to a point where, seeing an approaching downtown car, he attempted to turn again into the easterly or uptown track. In doing so one of the wheels of the ambulance was caught in the rail and the. ambulance was swung about violently in a westerly direction just" as plaintiff’s wagon liad reached a point in its course which was about three feet distant westerly from the westerly rail of the westerly or downtown track and immediately opposite the ambulance. Thus the two vehicles-collided.

The ambulance was entitled to the right of way. Laws 1879, chap. 186; 3 R. S. (Banks Bros.’ 7th ed.) 2086. Hence, it was incumbent upon those in charge of plaintiff’s wagon, upon seeing the ambulance approaching in an opposite direction, to deviate from their course sufficiently to enable the ambulance to turn out of the downtown track to avoid its collision "with a car approaching toward it on the same track. Instead of so doing, those, in charge of plaintiff’s wagon persisted in their course, thus leaving the driver of the ambulance no means of escape but to turn to the right or easterly side of the roadway, which he attempted to do, when the collision occurred, as already stated.

The inference, therefore, is irresistible either that, seeing the. ambulance, the persons in charge of plaintiff’s wagon disregarded it and its right of way, or that they failed to use the ordinary precaution of persons driving along the public highways or city streets, to be on the alert for vehicles approaching in an opposite direction, and so failed to see the ambulance. In either case, therefore, the collision was the fault of those to whom plaintiff had intrusted his wagon for the time being, and not of the driver of the ambulance.

The judgment should be reversed, with costs to abide the-event, and new trial ordered»

Giegerích, J., concurs.

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