
    Theodore Volosko, Appellant, v. Interurban Street Railway Company, Respondent.
    Second Department,
    June 8, 1906.
    ¡Negligence — injury to laborer struck by car while lifting stone from truck — when negligence and contributory negligence for jury.
    The plaintiff, a laborer,was standing on the hub of his truck, which was drawn" up parallel to the curb and was engaged in lifting a heavy stone. While bending over at this work the defendant’s surface car came around a curve 300 feet away,.and, running at a high rate' of speed, struck and injured the plaintiff. No warning bell was rung. On appeal from a dismissal of the complaint by direction of the court,
    
      Held, that the questions of the defendant’s negligence and the contributory negligence of the plaintiff-should have been left to the jury;
    That although the plaintiff knew his proximity to the rail, and there was no evidence that he looked or listened for the approach of cars, he was not guilty- of contributory negligence as a matter of law, for-the car was not in . sight when he got upon the wheel, and listening would have been of no avail as the car failed to sound its bell.
    Jenks.and Miller, JJ., dissented.
    Appeal by the plaintiff, Theodore Volosko, from a judgment of the SnpTeme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 31st day of December, 1904, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 24th day of January, 1905, •denying the plaintiff’s motion for a new trial made upon' the minutes.
    
      Rudolph Marks, for the appellant.
    .Bayard M. Ames \IIenry A. Robinson with him on the brief j, for the respondent.
   Rich, J.:

The defendant’s motion, made at the close of plain tiff’s, case, to dismiss the complaint on the grounds “ that the plaintiff has failed to show himself free from contributory negligence; * * *. that it affirmatively appears that he was guilty of contributory negligence; and * * * that no negligence has.been made out against thp defendant,” was granted. We must assume- that the evidence given on- the part of the plaintiff, so far as the same relates .to the negligence of the defendant and lijs freedom from contributory negligence; is true, and he is entitled to the most favorable inference deducible from the- evidence. (Higgins v. Eagleton, 155 N. Y. 466.) It appears that at- the time of the accident the plaintiff, a laborer,, was engaged in an attempt to remove -a heavy piece of ■ marble from a wagon standing bn the north side of Tenth street, between Avenues A and B,;in the borough of Manhattan. The - horse attached to the wagon was headed toward Avenue B:; the wagon was standing parallel to the tracks of defendant’s road in Tenth street, with a space of about five or six inches between the north rail and the outer edge of the rear hub of the wagon. The evidence tends to show that it was necessary for the plaintiff, in-order to remove this particular piece of marble, to stand upop this hub, and that while thus engaged he was struck by one of defendant’s cars and more or less seriously injured, One witness testified that the -car camp' into Tenth street from- Avenue B and hit the " plaintiff, who was working, about 300 feet from the corner. The car was going fast, and no signál was given to warn the plaintiff of .its approach until it was within about one foot from him. - This .evidence was sufficient to, require the submission of the question of * defendant’s negligence to the jury, unless it can be held as matter of law that the' plaintiff was guilty of contributory negligence. The witness Bubin,'the driver in charge of the horse, testified : “ I was about three feet- away from the wagon, and Volosko asked me I shall go up on -the wagon and give him a hand to lift out the stone. At. the time when Volosko’ asked me that,,-to give him v a lift, lie. was on the wheel of the wagon, standing on the wheel ’ of - the wagon. On the back wheel, on the wheel towards the-street. The outside of the wagon when he asked me to give him .a lift. His position was bended down and tried to lift the'stone. Bended down to-the wagon, inside the wagon ; into the wagon. His face was then turned towards the house in a bending position. I was just going to go up on the wagon: and the car come running .there and ketehed him and struck him and broke a couple of windows. * * * - Before this .car struck him I heard, no gong sounded or bell of any kind. As soon as the car struck him and the windows started in to. v smash then the motormaii started in to ring the bell at' once. * * .* After the car had struck the plaintiff it, stopped two houses away from the wagon. * * * The rear of the car was two houses away.- * * * When I first saw the car it was right near Volosko. * * * He was ben t in before "keeping the marble in his hand and asking me to give him a hand. * * *• That is the first car I seen coming through there. I had been there for about twenty minutes and that was the first car I saw coming through.”

Witness Shenfield testified: When the accident occurred I was at the corner of Avenue A. •* .* * A car was coming down from Avenue B ;” going “ fast, and Volosko was standing on the. hub of the wheel trying to get some marble slabs, * * * and the car when within a foot from Volosko started to ring. * * * I did hear the ring of the car when it was right on top of Volosko. When the car struck him, Volosko was stooping over, just bending over, leaning over into the wagon facing north towards the house in the opposite direction of where the .car was. * * * When 1 first saw Volosko on the hub of the wheel, the car was on the corner of Avenue B. * * * At that time the car was just coming from Avenue B. It just turned that curve into 10th Street.”

The'plaintiff testified: At the time I was lifting out that stone I was talking about it, I was on the rear wheel; * * * because it was impossible for me to take down that stone any other way. * * * I was standing in the wagon there bending-down taking off a big stone, lifting it out of the wagon. While working in that position I heard no sound of bell or gong or whistle of any kind before I was struck. I didn’t hear anything.”

It is true that the plaintiff had full knowledge of the proximity of the track upon which defendant’s ears ran, and there is no evidence in the case that he looked or listened for the approach of cars, but the law is not so unreasonable as to exact the impossible. .The -plaintiff was required to exercise the care of a reasonably prudent person ; had he listened he would have heard no signal in time to avoid the accident if none was given. ' And at the time of getting on the wheel he could not have seen the car if it was in Avenue B, as we must infer it was, in view of the evidence of the witness Shenfield. So that looking and listening at this time would have availed him nothing. It cannot be said as matter of law that the .plaintiff was guilty of contributory negligence. It ought to • have - been left to the jury to determine whether the plaintiff was guilty -of negligence which contributed to the- accident, and the failure of the learned trial court to do this was error.

The case of Crowley v. Metropolitan Street R. Co. (24 App, Div. 101), cited by counsel for the. defendant on.the motion to dismiss,- is x distinguishable from the case at bar in that there the injured man knew all about the frequency with which the cars passed; placed himself in a position of peril- wheii the car was only fifty feet away from him, coming at a fast gait;, who remained in -that position until - the car traversed the distance of fifty feet, and who. thus exposed liimsel-f knowingly to the peril of the very accident which happened. ILere we have nothing of the'kind; there is no evidence that the plaintiff, knowingly placed himself in a- position of peril. When he undertook to remove this stone no car had passed upon this track for twenty-minutes, and'we must infer that none was in sight. He may have been negligent, but a jury ought to pass upon , that question in the first .instance. (McDonald v. Metropolitan St. R. Co., 167 N. Y. 66.)

• The judgment' and order must, therefore, be reversed and a new trial granted, costs to abide the event.

Hirschberg, P. J., and Woodward, J., concurred; Jenks and Miller, JJ., dissented.

- Judgment and order reversed and new trial granted, costs to abide the event. -  