
    Mason-Seaman Transportation Company, Appellant, v. Henry Wineburgh, Respondent.
    (Supreme Court, Appellate Term,
    June, 1911.)
    Negligence — Contributory negligence — Careless driving by person injured.
    One driving horses and a vehicle through a city street is not bound to contemplate the possibility of an automobile emerging from a garage without any warning and turning in the direction he is coming and' colliding with his vehicle, although he knows of the existence of the garage and the entrance thereto which is hidden from his view by a large van backed up against the curbstone.
    Appeal by plaintiff from a judgment in favor of defendant rendered in the Municipal Court of the city of Hew York, borough of Manhattan, fifth district, after a trial by the court without a jury.
    Corbitt & Stern, for appellant.
    House, Grossman & Vorhaus, for respondent.
   Bijur, J.

Plaintiff sues for damages to one of its broughams as a result of its being run into by defendant’s automobile on West Eighty-ninth street, between Amsterdam avenue and Broadway. The brougham was proceeding westward. When it reached the West End Storage Warehouse, situated on the southerly side of the street, a large van was backed up against the south curb with its horses drawn around eastward. Plaintiff’s driver was unable to see the door of the garage immediately west of the storage warehouse. The driver says that, as his horses had just passed west of the van, defendant’s automobile, emerging from the garage without any warning, turned east and struck the brougham at the front left wheel.

While some doubt was expressed by the learned trial judge as to plaintiff’s proof that the repairs made were those necessitated by this accident, I think that the evidence sufficiently establishes that fact.

The trial judge based his decision in favor of the defendant on plaintiff’s contributory negligence, apparently on the theory that, as plaintiff’s driver could not see the entrance of the garage, which he knew was situated immediately west of the van, it was negligence on his part to drive past without taking some precautions. The question, however, must be determined by the peculiar circumstances of the case.

The learned trial judge, in rendering his opinion, said to plaintiff’s driver: What right have you 'to run into danger ? ” The evidence shows that plaintiff’s driver was necessarily proceeding along the proper, namely, right hand, side of the street, and that the street was clear. In other words, there was nothing approaching him along the street to indicate that any vehicle would come in the direction opposite to that in which he was proceeding, at the point where the van stood. He was, therefore, perfectly justified in assuming that he might proceed safely without checking his speed. • On the other hand, defendant’s chauffeur was necessarily compelled, in turning eastward after leaving the garage, to cross to what to him was the left or wrong side of the street; and he testified that the van obstructed his view to the eastward. Hnder these circumstances, it was his duty to proceed with care to the point where he could see beyond the van and learn whether it was safe for him to go eastward. The evidence is plain that he did not do this.

The only conduct of plaintiff which can be singled out as constituting contributory negligence was in failing to check the moderate speed of his horses in anticipation of defendant’s emerging suddenly from immediately behind the van. There was no other possibility of danger of collision with any other vehicle under the circumstances of this case. Plaintiff’s driver, however, was perfectly justified in assuming that neither defendant nor any other person would conduct himself in so foolhardy and unwarranted a manner. Any other rule would substantially forbid serviceable traffic through a street in which there might be one or more wagons standing at, or backed up against, the curb, and would be unreasonable in and of itself.

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

Seabury and Guy, JJ., concur.

Judgment reversed.  