
    Lemuel Littlefield, Respondent, v. The New York City Railway Company, James Doyle and Nathaniel Doyle, Appellants.
    (Supreme Court, Appellate Term,
    November, 1906.)
    Street railways — Operation: Collision with vehicles — Contributory negligence — Sufficiency of evidence — Negligence on part of company in general.
    Bailment— Hiring of chattels and bailments for mutual benefit.
    Plaintiff rented his truck and team to persons who placed the same in charge of an experienced driver who, while driving across the street, as the team was about to go on the track and was going at a moderate pace, well under control and in broad daylight, saw, sixty-five feet away, a street car approaching. The car came on at a high rate of speed and a collision followed. In an action against the hirers of the team and the railroad company for injuries to the truck, held:
    The driver, haying a right to rely upon the presumption that the motorman would respect his right to cross the railway track and would use ordinary care to prevent a collision, was not, under the circumstances, guilty of contributory negligence and the verdict against the railroad company should be sustained.
    The hirers of the team and truck were only liable for want of ordinary care and, having shown affirmatively that the truck was destroyed by the act of the defendant railroad company without fault on, their part, the judgment against them should be reversed, with costs.
    Appeal by the defendants from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, third district, borough of Manhattan.
    James A. Leering (J. C. Toole, of counsel), for appellants Doyle,
    George R. Westerfield, for respondent.
   Gildersleeve, J.

The action is for injury to plaintiff’s property. The plaintiff rented a truck and team to the defendants Doyle, who placed the same in charge of one Dunn, a driver of thirty years’ experience. At the corner of Waverly place and Sixth avenue, Dunn turned his horses east to cross the avenue into Waverly place. As his team was about to go on the north bound track, he looked and saw one of the cars of defendant railroad company, sixty-five feet away, coming up Sixth avenue. The horses were going at a moderate pace and were well under control. It was broad daylight and the motorman must have seen the team and truck. The car came on at a high rate of speed and struck the truck, causing the injuries complained of. The jury found for plaintiff against all the defendants. The latter appealed but the defendant railway company had submitted no brief on the appeal, nor did it introduce any testimony at the trial. There can be no question of the negligence of the motorman, who certainly could have stopped his car in time to avoid the collision, if he had had it under proper control as he approached the corner of Waverly place. Nor was the driver Dunn guilty of contributory negligence. He had a. right to cross the tracks at Waverly place, when the car was sixty-five feet away, relying on the presumption that the motorman would respect his right to so cross, and would use ordinary care to prevent a collision. There appears to have been no reason for an exceptional degree of care on the part of Dunn. So far, therefore, as the defendant railway company is concerned, the verdict must be upheld. As to the defendants Doyle another aspect, is presented. These two defendants, i. e. James and Nathaniel Doyle, were bailees for hire, and as such they were liable to plaintiff only for lack of ordinary care. The plaintiff unquestionably showed that the Doyles, as bailees of plaintiff, had received from plaintiff the latter’s property and had failed to restore the same to plaintiff. The Doyles, on the other hand, showed affirmatively the existence of circumstances affording a legal excuse for their omission to so restore plaintiff’s property, toxvit: that the same was destroyed by the act of a third party, without any fault on the part of the said defendants Doyle. The defendants Doyle showed that they used plaintiff’s property with the ordinary prudence and care which devolved upon them as bailees for hire of plaintiff.

We think the judgment should be affirmed as to the defendant railway company, with costs to plaintiff, hut reversed as to the defendants Doyle, with costs to said defendants.

Dowling, J., concurs; Dugko, J., taking no part.

Judgment affirmed as to defendant railway company, with costs to plaintiff, hut reversed as to defendants Doyle, with costs to said defendants.  