
    Leo Baumann et al., Resp’ts, v. John G. Gilmour, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 2, 1890.)
    
    Master and servant—Negligence or servant.
    The evidence tended to show that defendant’s servant while driving a heavy truck turned off of a railroad track to allow a car to pass and immediately attempted to return to the track in its rear, although plaintiff’s light wagon then occupied the space and in so doing collided with it, Meld, sufficient evidence of negligence to render defendant liable.
    Appeal from a judgment rendered in the district court for the fourth judicial district.
    
      Qruber, Bard & London, for app’lt; George Hahn, for resp’ts.
   Per Curiam.

The action was brought to recover damages for injuries received by plaintiff’s horse and wagon caused, as it is claimed, by the negligence of defendant’s servants.

Appellant contends that no negligence on the part of the defendant or his servants was shown, and that negligence in such a case will not be inferred from the mere happening of an accident The latter proposition is true, but the record in this case shows such, a state of facts as warranted the trial judge in finding that the collision occurred through the negligence of defendant’s servant in the absence of any explanation of them; and when this explanation was attempted, it showed that the defendant’s servant having drawn out of the railway track to allow a car to pass, immediately afterwards attempted to return to the track right after the car, as he claims he had a right to do, although the space was then occupied by plaintiff’s light wagon, and in making this attempt defendant’s heavy truck came in collision with it

We think there was sufficient evidence to warrant the justice in giving the judgment he did and that it should be affirmed.

Larramore, Ch. J., and Bookstaveb, J., concur.  