
    Frank Schmedding, Appellant, v. New York and Queens County Railway Company, Respondent.
    
      negligence — rule as to equality of rights between vehicles and street can's at street intersections — not applicable where the vehicle simply crosses at such intersection from one side to the other of the street upon which it .and the car are both traveling.
    
    A man driving a wagon along an avenue in which a street railway was operated, when he reached a point where the avenue was intersected by a street, attempted to drive across the tracks for the purpose of stopping at a house on the other side of the avenue. While-so engaged his wagon was struck by a. street car and he was injured.
    
      Held, that the rule that at intersecting streets the rights of a street car and of a crossing vehicle are equal had no application, and that the driver’s conduct was to be considered just as though there had been no intersecting street at the point where he attempted to cross the tracks.
    Appeal by the plaintiff, Frank Schmedding, from a judgment of the County Court of the county of Queens in favor of the defendant, entered in the office of the clerk of the county of Queens on the 2éth day of September, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 1st day of October, 1902, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      
      M. P. O'Connor [J. Brownson Her with him on the brief], for the appellant.
    
      George F. Hickey [ William E. Stewart with him on the brief], for the respondent.
   Willard Bartlett, J.:

This is a negligence suit arising out of a collision between the plaintiff’s wagon and one of the defendant’s trolley cars on Steinway avenue, in the borough of Queens, at or near the intersection of that avenue with Frankfort street. There was a verdict for the defendant, and the only questions presented upon this appeal relate to a refusal of the court to charge a request by the plaintiff and to a modification of that request.

The following extract from the record shows the manner in which these points were raised: Plaintiff’s counsel requested the court to charge the jury that as matter of law the defendant company did not have any superior right of way over Steinway avenue at the intersection of Frankfort street over that of the plaintiff; that the rights of the parties were equal at that corner. The Court: I decline to charge as requested. [Exception taken.] The Court: But I charge with respect to that place that each was required there to exercise the same degree of care that they .were required to exercise in any other part of this avenue. Had this accident occurred between the streets, when he was driving along Flushing avenue, and was about to cross Steinway avenue at this place and at this crossing, then their rights would have been equal, and the car would have had no superior right of way over the wagon. But the defendant and the plaintiff were both traveling on Steinway avenue before, they came to Frankfort street, and there was no change in the degree of care which each was required by law to observe, because of their coming to this crossing. [Plaintiff’s counsel excepts to the modification.} ”

It is not at all certain from the evidence that the collision occurred at the intersection of Steinway avenue and Frankfort street, but inasmuch as the jury might have found that it did so occur, it is necessary to inquire whether the instructions of the court were correct with reference to the rights of the parties at that point.

The plaintiff was not driving along Frankfort street and approaching Steinway avenue with the intention of crossing the railroad track at that point and continuing his journey through Frankfort street. He had been driving up Stein way avenue, along which the defendant’s tracks are laid and its cars operated. He was a baker, and he desired to cross from one side of Steinway avenue to the other side in order to deliver bread to a customer. While he was crossing Steinway avenue for this purpose a collision occurred; and the question is whether, assuming that his wagon was struck at the intersection of Frankfort street, he is entitled to invoke the application of the rule that at intersecting streets the rights of a street car and of a crossing vehicle are equal. (O'Neil v. I). D., E. B. <& B. It. It. Co., 129 N. Y. 125 ; Hewlett v. Broolch/n Heights It. It. Co., 63 App. Div. 423.)

The reason for this rule arises out of the necessities of the case when a car is traveling through one street and a vehicle is being driven through another street which crosses that upon which the railroad tracks are laid. The crossing vehicle must of necessity occupy the railroad track for some moments at least in. making its way along the intersecting street. Hence, it has been held'by the. courts, under such circumstances, that the paramount right which the railroad company has in respect to the operation of its cars in the other parts of the street becomes lessened to mere equality with respect to crossing vehicles at street intersections. It is manifest, therefore, that if the plaintiff liad been driving through Frankfort street, and had crossed Steinway avenue or was attempting to cross Stein way avenue on his way, the rule would have been applicable to the condition of things thus presented, and the refusal of the court to charge the request of his counsel would have been error.

I think, however, that it had no application under the circumstances. There was an absence in this case of any necessity calling for the crossing of’ the tracks at the street intersection. The plaintiff had the most ample choice as to 'the place which he would select as his route in proceeding from one side of Steinway avenue to the other in order to serve his customers. He was not limited to any particular portion of the railway track, as he would have been in case lie had been driving through Frankfort street. Indeed, his actions are to be considered just as though there had been no intersecting street whatever at the point where Frankfort street crosses ,Steinway avenue, because the presence of that street had no effect and could have had no effect upon his conduct. If this view is correct, the learned county judge committed no error, but on the contrary instructed the jury in precise accordance with the law. It is to be observed that the charge requested was not a general instruction that at street intersections the rights of cars and crossing vehicles are equal, but was a specific declaration that this defendant company did not have any superior right of way over Steinway avenue ■at the intersection of Frankfort street over the right of the plaintiff.

In my opinion the exceptions relied upon are untenable, and I think the judgment should be affirmed.

Present — Goodrich, P. J-., Bartlett, Woodward and Jenks, JJ.

Judgment and order unanimously affirmed, with costs.  