
    John Schlitz, Appellant, v. The Nassau Electric Railroad Company, Respondent.
    
      Negligence — assumption of the risk, by one who'tur ns upon street car tracks in front of an approaching car.
    
    In an action brought to recover damages for injuries resulting from the alleged negligence of the defendant, it appeared that a drag drawn by six horses,, hitched in spans, the distance from the heads of the leaders to the rear of the-drag being fifty or sixty feet, was being driven by the plaintiff’s servant along-a street on which the defendant operated two street railroad tracks; that the. space between the tracks and for twq feet outside thereof was paved, and that, the rest of the driveway, which was unpav.ed, had been rendered muddy and "slushy, but not impassable, by a recent rain: that the plaintiff’s servant, who-knew that cars were traveling in each direction on a minute headway, drove-up on the right-hand track, the right-hand wheels being in the dirt roadbed owing-to the width of the drag; that a car approaching from behind, having signaled the plaintiff’s servant to remove from the track, the latter turned to the left,, where the drag and horses, which were owned by the plaintiff, were' struck by a car approaching oh the left-hand track, causing the damages complained of.
    It also appeared that the accident occurred in the early evening, and that the-drag was provided with lamps that cast a reflection* for about 100 feet, while the evidence as to whether the car lamps were lighted was somewhat: conflicting.
    
      Held, that the plaintiff’s servant, by electing to turn his cumbersome outfit to the- ■ left, with knowledge of the frequency with which the cars were operated, when, he- might have turned to the right and have entirely cleared the tracks, assumed the risk of the accident, whether or not he saw the approaching car.. •
    Appeal by the plaintiff, John Schlitz, from -a judgment of the-Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 10th day of March, 1899,. upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.
    . The action was brought to recover damages sustained by the plaintiff in consequence of a collision between one of the defendant’s cars and a drag and horses -which were owned by the plaintiff.
    
      Martin E. Halpin, for the appellant.
    
      Henry Yonge, for the respondent.
   Hatch, J. :

The evidence given upon the trial disclosed that on the 22d day of August, 1897, the plaintiff had contracted to carry the John Palmer Association from Throop avenue, in the city of Brooklyn,, to Sheepshead Bay, and, in compliance with such contract, he transported the association in a vehicle known as a drag, having seven seats running crosswise in the body. There were attached to the drag six horses, hitched in spans, and they were driven by William Grnpp, a servant of the plaintiff. From the heads of the leaders; to the rear of the vehicle was a distance of between fifty and sixty feet, and the driver sat upon a box on the vehicle, raised about four-feet above the horses. The return trip was begun from Sheepshead Bay at about half-past six o’clock, and while it was still light. The-vehicle was supplied with lamps on either side of the box where the driver sat, and these lamps were lighted shortly after the return-trip was begun. The lamps cast a reflection for a distance of about, a hundred feet. The day had been bright and clear until late in the afternoon, when a heavy shower came up and wet the roads, making them muddy and slushy.” The vehicle proceeded along Ocean avenue, upon which street the. defendant maintains and operates a. double line of street railroad track. The space occupied by the; tracks, and to a 'distance of about two feet upon either side, is paved; the remainder of the traveled roadway of the avenue is a dirt, unpaved road. The driver proceeded with the horses and vehicle-by driving in the right-hand track of the railroad, but, as .the vehicle-was wider than the tracks, the wheels upon one side ran in the dirt, roadbed, and the others in the groove of the rail of the track.. It was Sunday, and a large number of people were being transported by the railroad company from and to Sheepshead Bay, cars-running in both directions upon about a minute headway. ■ The cars; upon the track proceeded with more rapidity than did the vehicle, and the latter’s position obstructed the tracks upon which the cars ran to the city of Brooklyn. While in this position a car aproached from the rear, rang its bell for the vehicle to remove from the track, and thereupon the driver pulled his leaders to the left, over the track upon that side, and almost- immediately thereafter a car upon that track came in collision with the horses and vehicle, killing some of them, injuring others, damaged the drag, the driver, and, to sorpe extent, its occupants. It was testified by the driver and by his brother who sat upon the seat with him, that there were no lights either upon the head or in the body, of the car at the time Avilen the driver turned his horses to the left-hand side of the street, and some testimony was given by the passengers in the car that the. lights were not,lighted,- Other witnesses testified that the lights in the car were lighted both at its head and in the body, and had been ■so lighted for some time, and an examination of the testimony of the lady who testified that the lights were not lit and her companion indicates pretty conclusively that they were not engaged in making •observation as to the- lights, and when cross-examined in respect thereto the mam admitted that the lights were lighted*, and the lady made contradictory statements in respect thereto.

If the case turned upon the proposition as to whether the lights within the car were lighted, it is possible that we. might .conclude that the jury would be authorized to find that there.were no lights upon the car, and yet, in view of all the- evidence' in the case, such •conclusion would be nearly, if not quite, against the preponderance ■of the whole of plaintiff’s proof upon that subject. But our Ariew ■of the case and ¡the features which control our decision, do not make such question the controlling one in the case. ..It must be assumed, ¡although the testimony does not so state in words, that the space to the right of the car track was passable, and that the vehicle might .have been safely driven therein. It appeared that a part of the vehicle Avas at all times run upon a part of this dirt roadbed, and no •claim was made that it -was impassable except the-statement that it was muddy and slushy. Such condition, however, while it may have made, the drag more difficult to haul and have retarded headway, did hot render the road impassable; or prevent the driver from going therein, where it. might liave entirely cleared the tracks and reached, a safe place. In accordance with the law of the road it became his duty to drive to the right, and it also became his duty to remove the drag from the track .¡to permit the car in its rear to pa,ss, as the car then '•had- the paramount right of way in the track..' While turning to the left did not conclusively establish contributory negligence upon the •part of the plaintiff, yet it created the presumption'.that by his act lie contributed to the accident, and such presumption becomes conclusive unless his presence upon the wrong side of the road:be ■explained and justified. (Quinn v. O'Keeffe, 9 App. Div. 68.)

• As we view the evidence there was no sufficient justification given of his presence upon -that side of the road'. As we have already observed, he might have exercised his lawful right and driven to the right of the track. lie was also authorized to drive to the left, if the conditions existing at the time, of which he had notice, or of which he ought to have taken notice, rendered such course free of danger either to himself or others. The fact that the accident happened almost immediately upon his turning to the left established the close proximity of the car. The driver then knew, for he so testified, that these cars were running upon each track at intervals of about a minute, and it is quite evident that to control six horses and haul an unwieldy drag across these tracks would occupy the whole of that space of time; consequently, whether he saw the approaching car or did not see it, he was chargeable with the knowledge that the transference of his horses and drag from one side of .•the street to the other would almost certainly bring him in contact with anapproaching car, and if a collision did not occur the progress of the car would be impeded, and he would, in any event, infringe upon the paramount right of way which the moving car possessed.

In view of these circumstances it is clear that the plaintiff, when he chose to go to the left in the wrong place, rather than to turn to the right and be in the right place, took upon himself the risks incident to that situation, and of which he knew or with which he was chargeable. The collision was, therefore, the direct result of his wrongful act, and he was properly chargeable with negligence.-

It follows that the judgment should be affirmed.

Woodward, J., absent.

Judgment unanimously affirmed, with costs.  