
    Morris Jaffa, an Infant, by Samuel Jaffa, His Guardian ad Litem, Respondent, v. The Nassau Electric Railroad Company, Appellant.
    Second Department,
    April 23, 1909.
    Railroad — negligence—collision with vehicle driving on track— erroneous charge.
    Where a plaintiff, suing to recover for injuries received by a collision while driving upon the defendant’s tracks, has testified that after driving on the track for several blocks he looked back and saw the car about thirty-five feet away, and was struck while he was trying to tui n out, it is error for the court to decide the negligence of the defendant and the contributory negligence of the plaintiff as matters of law, and to instruct the jury that the only question is as to whether the plaintiff suffered any injury.
    The plaintiff was bound to show affirmatively that he was free from contributory negligence, and, being an interested witness, his testimony raised an issue for the jury, and, even if they believed his testimony, it was still a question of fact as to whether he exercised the care the circumstances required.
    In such action it is error to refuse to charge that a street surface railway has a paramount right of way on its tracks in the middle of a block.
    Appeal by the defendant, The Nassau Electric Bail road Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 22d day of December, 1908.
    
      Francis R. Stoddard, Jr., for the appellant.
    
      Adolph Benevy, for the respondent.
   Woodward, J.:

The plaintiff claims to have been injured in a collision with one of the defendant’s surface cars; that he was driving upon the track having looked back at the time of entering upon the track and seeing no car; that “after driving several blocks I looked back and saw the car right in back of me and I was just about to turn out when the car struck me and flung the wagon .over; ” that the car was about thirty-five feet away when he looked back ; that he drove upon the car tracks to avoid the mud, etc. There was the usual testimony as to the speed of the car, how soon it could have been stopped, etc., and the learned court disposed of the questions in the following charge to the jury: “ The only question in this case which the court is going to submit to you is the question as to whether the plaintiff suffered any damage by reason of the fall or jumping off of the wagon which you have heard him testify to. Now, it is for you to say whether he suffered any damages at all, and if you find that he did not suffer any damages then you will render a verdict in favor of the defendant. If, on the other hand, you are satisfied that he did suffer injuries by reason of the occurrence which you have heard testified to, then you will render a verdict in favor of the plaintiff for such sum of damages as you think Avill reasonably compensate him for his pain, suffering, trouble and inconvenience.” Counsel for defendant took an exception to this charge on the ground that it took from the jury the questions of contributory negligence and of defendant’s negligence, questions which could not, under the evidence, be properly disposed of as matters of law. Counsel likewise asked the court to charge that “ the question of contributory negligence is still before the jury,” but this the court refused, the defendant taking an exception. Clearly there can be no question of the error in this charge and the refusal to charge. The plaintiff is bound to show affirmatively that he has been free from negligence contributing to the accident; he is an interested witness and his testimony that he traveled upon this railroad track for several blocks without looking behind him, and that when" he did look back the car was within thirty-live feet of him and that he was just about to get out of the track when his wagon was struck, presented a question for the jury. They Avere not bound to believe him. If they did believe him, it was still a question of fact whether he had exercised the degree of care which the circumstanced demanded. It cannot be said, as a matter of law, that a man has been free from contributory negligence under the facts testified to by the plaintiff. The accident occurred between blocks where the rights of the defendant, while not exclusive, were paramount; where the motorman had a right to assume that the plaintiff would observe the superior rights of the railroad, and where it appears that the only excuse for the plaintiff being upon the track was to avoid the mud which, so far as appears, Avas by no means impassable, and it is assuming a good deal for a trial court to attempt to determine for the jury all'of the real issues in an action for negligence. For these errors, as well as for the error in refusing the request of the defendant to eliarge that the defendant had a paramount right to its tracks in the middle of a block, the judgment appealed from must he reversed.

The judgment appealed from should be reversed, with costs, and a new trial granted.

Jenks, Gaynor, Burr and Rich, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  