
    Meier Brauner, as Administrator, etc., of Israel Brauner, Deceased, Appellant, v. Third Avenue Railroad Company, Respondent.
    First Department,
    December 13, 1907.
    Negligence — collision between vehicle and surface car — erroneous nonsuit.
    Evidence in an action to recover for the death of one struck by .a surface car while driving a wagon examined, and held that a nonsuit was error.
    Ingraham, J., dissented, with memorandum.
    Appeal by the plaintiff, Meier Brauner, as administrator, etc., from a judgment of the Supreme Court-in favor of the defendant, entered i-n the office of the clerk of the county of New York on the 1st day of March, 1907, upon the dismissal of the complaint by direction of the court at the close of-the plaintiff’s case on atrial at' the New York Trial Term, 'and also from an order entered in said clerk’s office on the 4tli day of March, 1907, denying the plaintiff’s motion for anew trial made upon the minutes.
    
      Alex B. Greenberg, for the appellant.
    
      Bayard H. Ames, for the respondent.
   Laughlin, J.:

This is a statutory action to recover for the death of Israel Brauner, alleged to have been caiised by the negligence of the defendant. It is alleged in the complaint, as amended, that on the 10th day of July, 1899, the decedent was lawfully driving a wagon, drawn by two horses, northerly along Third avenue, in the borough of Manhattan, N. Y., and while between Ninety-seventh and Ninety-eighth streets the wagon was struck by a south-bound car of the defendant, whose employees operated the same in a careless and negligent manner, precipitating the decedent to .the ground, thereby causing his death.

The -points presented by the appeal aré with respect to the sufficiency of the evidence of freedom from contributory negligence and negligence to take the case to the jury. We are of opinion that both questions became questions of fact for the consideration of the jury. The plaintiff gave evidence tending to show that the decedent was a healthy, intelligent boy, nineteen years of age, and was employed as salesman for the firm of Stern '& ’Branner, engaged in the pickle business; that he always went along with the driver ; that on the day in question he started from his employer’s place of business with one Grill as a helper, on a covered truck wagon-load of pickles drawn by two heavy truck horses, and was driving at the time of the accident.

One Herman, a drygoods merchant at No. 1766 Third avenue, which is next door south of Ninety-eighth-street on the westerly side, testified that he was standing on the sidewalk in front of the • door of his store; that he observed the pickle wagon at Ninety-seventh street, coming northerly on the north-bound track, and then noticed a car behind and heard the gong, and observed that- the driver of the wagon turned west onto the south-bound track while crossing Ninety-seventh street; that at this time a double-top ice wagon was standing on the east side of the avenue, backed up to the curb in front of the second store north of Ninety-seventh street; that after the car passed and about in the middle of the block, and when the wagon was between the westerly curb and westerly track, it commenced to turn to cross diagonally .to the east side of the street; that he did not see any car approaching from the north until he heard it-strike the wagon directly in front of his place of business; that he was looking at the wagon passing, and that when the horses passed upon the south-bound track the car was not on that block, but that he did not see the car until it struck the wagon ; that' by the collision the wagon was tipped over to the east side of the avenue; that the ear first struck the left front wheel of the wagon and then the left hind wheel, the wagon being at the time in a diagonal position On the’tr.ackj slanting towards the northeast, and that the wagon was nearly off .the track when it was- struck. One Unger, who resided arid kept store at No. 1758 Third avenue, which was the third door north of Ninety-seventh street, on the west side, testified that he had just come out of his store and was standing in the middle of the street near the car track, where an underground improvement was being made, which he was looking at; that he first noticed the wagon On the westerly side of the street when it commenced to turn toward the east to cross to that side, which he says was about opposite to No. 1762 or 1764, which would be a little above the middle of the block; but later oil he says, “ It was about in the middle of the block; ” that, he saw the south-bound^ car crossing Ninety-eighth street; that at the time the horses, in crossing the avenue from west to east, readied the track it was about in the middle of the block or opposite. No. 1762, and “At that time, I say, the car was crossing 98th street. Next— I was just watching on the street — arid I heard some hollering, and I looked up and saw tliat the car struck the- wagon. Tlie car went, into the hind wheel and turned over the wagon. After the car-struck x . ° the hind wheel of the wagon the wagon fell over from the west side on tlie east side, to the east.”,

- One Knobler, who conducted a store at No. 1763 Third avenue, which was the second door south of Ninety-eighth street on the east, side, testified that he was standing in his store looking out through the window and was attracted by' the decedent’s helper .holloing, “ Stop, stop';” that he-looked out and saw G-rill standing up, holding -up his hand and shouting, “ Stop, stop,”'and. that he saw the car coming down on the west side. “ It was coming near 98th street;” that it was a Cable car; that he did not see the grip-man doing any thing at first, but after ' the holloing and when the car was about fifteen feet from the wagon, or “maybe more,” he saw the gripman endeavor to stop the car; - that.the car struck the land, wheel of the wagon, turning it over to tlie east side.. On cross-examination this witness said .that when the horses first came. on the south-bound track, he heard the shouting and that the car then was at 98th street, just coming from 98th street; ” that at this time he saw the decedent urge the horses forward with the reins ; “ I saw that, but he didn’t quite succeed and the car' hit him; ” that the wagon was headed in the direction where they delivered pickles there somewhere about 98th street; ” that the car. was running along at the regular rate of speed wlien«he first saw it and during all the time he "saw it; that the first time that I looked at the motorman he was trying tó stop the car, putting his hand on the brake;” but on redirect examination he again testified that the car was within fifteen or twenty feet of,the wagon before the motorman attempted to stop. At this point the record does not show that the plaintiff rested,' but it contains a formal motion for a dismissal of - the complaint and shows that it was granted and that an exception thereto was' taken. It then appears that the attorney for the plaintiff requested the court to permit him to call another witness, which the court declined. Then counsel for plaintiff duly excepted to the ruling of the court and moved for a new trial, which motion was denied and he excepted. Perhaps it should be assumed that the plaintiff rested or acquiesced in the motion for a dismissal of the complaint, upon the theory that he had rested, inasmuch as it does not appear that there was any objection upon that ground to the motion being made. Even so, however, assuming as we must that the record correctly shows the proceedings, plaintiff should have been permitted to call his other witness. It appeared that Grill, who was on the wagon with the decedent, was in court and it is to be inferred that he is the witness the plaintiff desired to call. It is manifest that his evidence would be most material. Assuming, however, that the plaintiff formally rested his case upon the evidence disclosed by the record, the material parts of which are herein summarized, sufficient was shown to take the case to the jury. The easterly carriageway, having been obstructed, the driver had a right to turn to the west, erly side of the street, and after the car passed he not only had a right but it was his duty to fetiirn to the proper side of the- street with reasonable dispatch. The evidence would have warranted a finding that the horses and the front part of the wagon had cleared the track and that the car collided with the left hind wheel. The accident occurred in, broad daylight. In these circumstances it might be inferred that the motorman saw the wagon crossing the track in time to avoid thei collision ; and the evidence indicates that he would have discovered it in. time to slow down or stop the car until the wagon cleared the track if he had exercised proper care. According ■ to- the evidence, fhe car was 100 feet or more away when the horses reached or entered upon- the track, and, therefore, it cannbt be said as matter of law that the driver® was guilty of negligente in proceeding to cross.

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

Patterson, P. J., Clarke and Scott,'JJ., concurred; Ingraham J., dissented.

Ingraham, J. (dissenting):

I dissent, I do not think the evidence was sufficient to justify a finding that the defendant was negligent, or that the .plaintiff was free from contributory negligence. ■

Judgment and order reversed, new trial ordered, costs to' appellant to abide event, 
      
       See Code Civ. Proc. § 1902 et seq.— [Rep.
     