
    Meyer Sosofsky, Respondent, v. The Metropolitan Street Railway Company, Appellant.
    Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, first district, borough of Manhattan.
    H. A. Robinson (G. Glenn Worden, of counsel), for appellant.
    A. H. Sarasohn, for respondent.
   Per Curiam.

The plaintiff’s ice wagon was compelled, in consequence of obstructions in the street, to go upon the defendant’s track. A car coming up behind, the driver whistled, and plaintiffs driver immediately started to drive off the track so as to allow the car to pass. Before the wagon had gone clear the car collided with it and caused the accident. This was all in plain daylight. It was attempted to he shown that there was a scale bar projecting six or seven inches behind the ice wagon, and that it was this that the car caught. The driver testified that he saw it plainly. While it may have been contrary to the ordinances to have the scale where it was, such violation did not justify the driver’s negligence in catching it. The justice submitted the case to the jury in a charge which was even more favorable to defendant than it had a right to ask.

Present: Scott, P. J., Beach and Fitzgerald, JJ.

Judgment affirmed, with costs.  