
    Herman Reiss, Appellant, v. The Metropolitan Street Railway Co., Respondent.
    (Supreme Court, Appellate Term,
    June, 1899.)
    negligence — Contributory negligence.
    Where the evidence of the plaintiff’s only witness shows that his driver was guilty of an error of judgment in whipping up his horses and attempting to cross the defendant’s track at a point where its motor car had the right of way and when he was only distant from the car 100 feet, a judgment for the defendant must be affirmed.
    Appeal by the plaintiff from a judgment of the Municipal Court, ninth district, borough of Manhattan, rendered in favor of the defendant.
    Joseph I. Green, for appellant.
    Henry A. Robinson for respondent.
   MacLean, J.

It appears from the statements of the plaintiff’s one witness of the occurrence, a friendly passenger on the seat with the driver of a large covered express wagon, that the plaintiff’s driver attempted to cross the car tracks of the defendant on Second avenue between the streets where the defendant’s vehicles had the right of way and when a car was only 100 feet distant. The driver, finding out his mistake, attempted by whipping his horses to get over in safety, but too late. The testimony exhibits no evidence of fault on the part of the motorman or other servant of the defendant, hut does show the imprudence of the driver of the plaintiff. Meyer v. Brooklyn H. R. R. Co., 9 App. Div. 79. The judgment should be affirmed, with costs.

Freedman, P. J., concurs; Leveíttritt, J., taking no part.

Judgment affirmed, with costs.  