
    Michael Leonard, Appellant, v. Adrian H. Joline et al, as Receivers, Etc., Respondents.
    (Supreme Court, Appellate Term,
    December, 1908.)
    Negligence — Contributory negligence — Acts in emergencies.
    Street railways — Operation — Collision with vehicles — Contributory negligence — Acts in emergencies.
    Where a street car, so constructed that the rear end .projected live feet beyond the outer rail on turning a street corner, struck a truck on the turn and damaged it, and it appears the driver did not see the car which was approaching him from behind until the motorman was right alongside him, when the car turned the corner and struck him, and it also appears that an open manhole was just ahead of him in the street into which his horse was carried; even if it were possible for the driver to have turned quickly without driving into the manhole he is not to be held guilty of contributory negligence for having failed to do so, upon the spur of the moment, to escape the consequences of the negligent management of the car.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, third district, borough of Manhattan, dismissing the complaint after a trial before a jury.
    
      James E. Duross, for appellants.
    Hasten & Nichols (Anthony J. Ernest, of counsel), for respondent.
   Giegerich, J.

The principal question presented by this appeal is whether there was sufficient evidence to go to the jury upon the question of the defendants’ negligence and the plaintiff’s freedom from contributory negligence. The action was brought to recover damages for injuries to the plaintiff’s horse and truck.

The circumstances of the accident were as follows:

The plaintiff’s driver was driving the horse and truck in suit down the westerly side of Madison avenue from Forty-third street toward Forty-second street, in the borough of Manhattan, the truck being about three feet from the westerly rail of the street car track. Coming down Madison avenue in a southerly direction on the westerly track, and behind the plaintiff’s truck, was one of the defendants’ street cars, styled in the evidence “ one of the new pay-as-you-enter cars,” which, as appears from the evidence, are about forty feet long and project an unusual distance beyond the wheels both in front and in the rear. The consequence is that, as the car turns around the corner on a curve, the rear end is thrown out a distance of five feet beyond the outer rail. As the car in question was making the turn from Madison avenue to the left into Forty-second street, it struck the rear wheel of the plaintiff’s truck and crowded the horse off its feet and slid it along the pavement a distance of about ten feet into an open manhole. The contention on behalf of the defendants is that the driver of the truck was negligent in not turning to the right a sufficient distance to clear the car as it swung around the curve.

The testimony on this point, given by the driver, is that the first he knew of the presence of the car was when the motorman was “ right alongside ” him, at which time the witness, who was standing in the front end of the truck driving, was about ten feet north of the Forty-second street curb. He further testified as follows: “Ho more than this motorman got even to me, he made that turn, and his car hit me.”

It is claimed on behalf of the defendants that, when the driver first noticed the car, the street at his right was clear and that he could have turned in that direction in order to avoid the chance of a collision without any danger of driving into the open manhole,- which was protected by a slight temporary iron framework railing. According to the testi-mony as just given, however, it is not apparent that such a course was possible. The manhole was about on a line with the northerly curb line of Forty-second street; and, if such a course on -the driver’s part had been attempted, there is no ground for concluding that the accident would have been avoided, or that such -a course would have been a more prudent one to attempt.

By turning to the right, the progress of the truck would necessarily have been somewhat retarded and, moreover, the impact of the rear end of the car against the wheels would have been more direct.

But, even if such a course would have been better and safer, the law does not impose upon the plaintiff placed in a position of danger by the negligence of the defendant the exercise of the best possible judgment upon the spur of the moment. Twomley v. C. P. N. & E. R. R. Co., 69 N. Y. 158; Schoenfeld v. Metropolitan St. R. Co., 40 Misc. Rep. 201.

My conclusion is that the testimony above referred to was sufficient, if the jury saw fit to credit it, to establish not only the defendants’ negligence but the driver’s freedom from contributory negligence, and that the dismissal was error.

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Ford, J., concurs.

Hendrick, J.

I concur in the result. The plaintiff was ¿awfully upon the street, in a position of danger unknown to himself, but which must have been, or at- least should have been, known to the defendants’ employees. They could and should have -avoided the accident.

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