
    Edward M. Harlan, Appellant, v. Adrian H. Joline and Douglas Robinson, as Receivers of the Metropolitan Street Railway Company, Respondents.
    (Supreme Court, Appellate Term, First Department,
    June, 1912.)
    Automobiles — negligence — right of chauffeur while crossing- street — street railways.
    Plaintiff’s automobile was being driven by a friend, with his consent, and while crossing a street the chauffeur, looking to the north, observed a street car coming south, and about 110 feet north of the automobile, at the rate of about fifteen miles an hour. The chauffeur proceeded, to cross the track while his companion held out his left hand. The street car struck the automobile and damaged it. Held, that the chauffeur had an equal right at the crossing with the street car, and whether he was justified in assuming that the latter was under the control of the motorman and would be slowed down to enable him to safely cross was for the jury.
    Appeal by the plaintiff from a judgment dismissing the complaint at the close of plaintiff’s case, entered in the Municipal Court of the city of-Hew York, borough of Manhattan, seventh district, after a trial by a judge without a jury-
    Joseph Rosenzweig, for appellant.
    Masten & Hichols (B. F. Record, of counsel), for respondents.
   Bijur, J.

The plaintiff’s automobile, being driven with his consent by a friend, was crossing Lenox avenue from west to east on One Hundred and Twenty-Second street. When it had reached Lenox avenue and was twenty to thirty feet from the south .bound car track of defendants, the chauffeur, looking to the north, saw a car coming south and then about one hundred and ten feet north of the automobile. The latter was proceeding at from three to five miles per hour; the car about fifteen miles per hour. The chauffeur spoke to his companion, who was sitting to the left of him in the front seat, who thereupon held out lr left hand toward the car, while the chauffeur proceeded to cross the track. The car hit the automobile about in the middle but slightly to the rear, and inflicted damages for which recovery is sought.

The learned trial judge seemed to regard the motorman of the car as negligent, but treated the chauffeur’s course as contributory negligence as matter of law, because, as the judge said, he took upon'himself “a dangerous attitude” and a “ wild and reckless guess at what he might do.” This ruling, however, is not justified by the authorities. The chauffeur had equal right at this crossing with the defendants’ car. From the facts proved, the question, whether he was justified in assuming that the car was under control of the motorman and would be slowed down to enable him to cross without danger, should have been submitted to the determination of the jury. See Handy v. Metropolitan St. R. Co., 70 App. Div. 26, 32; Hugher v. Nassau El. R. R. Co., 142 id. 522; Lawson v. Metropolitan St. R. Co., 40 id. 307, affd., 166 N. Y. 589; Legare v. Union R. Co., 61 App. Div. 202, affd., 175 N. Y. 502

Judgment reversed and new trial ordered, with costs to appellant to abide the event.

Seabury and Lehman, JJ., concur.

Judgment reversed.  