
    John Buhrens, Resp’t, v. Dry Dock, East Broadway and Battery Railway Co., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed July 9, 1889.)
    
    1. Negligence—Street railroads—Contributory—Question of fact.
    The plaintiff was driving a wagon through a street running at right angles, to a street on which defendant’s street cars ran. When plaintiff reached the corner, he saw a car coming very fast down grade, about seventy feet away, plaintiff’s horse being at the time about ten feet from the tracks. Elaintiff went ahead and, in attempting to cross, a collision occurred between the car and the hind wheel of his wagon, tilting it over and injuring him. Plaintiff supposed he could clear the track. Held, that the mere error of judgment was not necessarily negligence; that the question of contributory negligence was for the jury. •
    2. Same—Right of way—Extent of.
    
      Held, that' although street railway cars have, to a certain degree, the right of way in respect to vehicles passing in the same or opposite directions, in respect to those points where their tracks cross other streets, their rights are the same as those of other vehicles.
    3. Same.
    
      Held, that plaintiff had a right to assume that the car would give him the way, to which he was entitled by the fact of the position he had attained at the crossing.
    Appeal from judgment upon verdict and also from order denying motion for new trial.
    
      J. M. Scribner, for app’lt; W. H. Townley, for resp’t.
   Van Brunt, P. J.

This action was brought to recover damages on account of personal injuries received by the plaintiff. The plaintiff is a baker. On the morning of December 15, 1884, he was driving his wagon through Pike street towards East Broadway. The defendant’s tracks are in the latter street, the down track being the one nearer the north side. The morning was dark and raining hard, but the electric lights were burning and a person could see a distance of three-quarters of a block away. When the plaintiff reached the corner of the street he looked out of the wagon, which had open sides, and saw a car coming terribly fast about seventy feet away, the plaintiff’s horse at the same time being about ten feet from the car track. There was a hill, down which the car was coming, and on account of the rain- the track was slippery. The street, where the plaintiff was traveling, was level. When asked why he did not stop when he saw the car coming only seventy feet away, he replied, “the car had just as much time $s I did to stop,” and that he did not make any attempt to check his speed at all, but pushed right ahead. The car coming along struck1 the hind wheel of the wagon, tilted it over and the plaintiff was injured.

The jury rendered a verdict for the plaintiff and from the judgment thereupon entered this appeal was taken.

The ground upon which the appellant claims a reversal is that the uncontradicted facts show contributory negligence in that as the plaintiff saw the defendant’s car approaching at an excessive rate of speed,- it necessarily follows that he was negligent in pursuing his course.

It appears that the plaintiff was driving slowly, and that all of the wagon, except the hind wheel, cleared the car, which shows that the plaintiff’s opinion that he could pass the car safely was not entirely without foundation, and if the latter had been properly managed would have been undoubtedly correct.

Assuming that the plaintiff saw the car approaching very fast, still there was nothing to indicate to him that it was not under control of the driver, and he had.a right to believe that the latter would exercise proper care. The plaintiff supposed he would clear the car, and although subsequent events proved that he erred in this conclusion, a mei’e error of judgment was not necessarily negligence when the proof shows that had the car been properly managed as the plaintiff had a right to assume it would be, he would have been enabled to cross in safety.

From these facts, it being possible to draw an inference that the plaintiff had not been guilty of negligence in attempting to cross under the circumstances disclosed, the question of negligence necessarily became a question for the jury, and it was for them to say whether the plaintiff had proved himself to be free from negligence, or not.

_ It is not the province of the court to determine this question where it is possible to draw different inferences or conclusions from the facts disclosed. It is true that the plaintiff stated after the accident that the car had just as much time as he had to stop; but this indicated nothing except the fact which was self evident, and the car would, if properly managed, have had more time to stop than the plaintiff.

It is claimed upon the part of the defendants, however, that they had the right of way, and therefore it was the duty of the plaintiff to stop to allow them to pass. It is undoubtedly well settled that street railway cars have, to a certain degree, the right of way over their tracks in respect to vehicles passing in the same or opposite directions to the cars within the space embraced between their tracks. This right has been conceded to vehicles of the description of street cars, simply because of the necessities of the situation. A street car is confined to its track. It cannot turn out to pass a vehicle which is proceeding in the same direction with it at a slower pace, neither can it turn out to avoid a vehicle passing in an opposite direction. And it is because of this inability, and the fact that their calling could not be pursued without giving them this right, that it has betii held that they have the right of way within the limitations already mentioned. But in respect to those points, where their car tracks cross other streets, there is no reason and no necessity for giving to vehicles of this description any such exclusive right. Their use of the streets at such points is of precisely the same nature and character as that of other vehicles, and their rights to the street and the use thereof in respect to other vehicles are precisely the same as those of such other vehicles. There is no necessity for adjudging to them any right of way as their construction and method of propulsion is in no greater respect interfered with under such circumstances than are those of other vehicles. We do not therefore concede the claim upon the part of the defendants that they had a right of way, and that they had a right to assume that the plaintiff would stop to allow their car to pass; but that the plaintiff had a right to assume that the car would give him the way to which he was entitled by the fact of the position which he had attained at the crossing.

The only exception to which it is necessary to call attention, is the exception to the question where the plaintiff’s counsel was allowed to ask the driver if he had not been previously discharged from another road. This ruling was probably erroneous. But as in his answer, the witness admitted the fact, further stating that he was discharged on -account of political influence, the error was harmless.

We are of the opinion, therefore, upon the whole case that it was a question for the jury to determine as to whether, under the circumstances of the case, the plaintiff had shown himself to be free from contributory negligence or not, and that it was not error to submit this question to them for their consideration.

The judgment appealed from must be affirmed, with costs.

Cullen, J., concurs._  