
    Charles A. Winch, Respondent, v. The Third Avenue Railroad Co., Appellant.
    (New York Common Pleas
    General Term,
    May, 1895.)
    Plaintiff’s driver, before turning into an avenue in which a street railroad was operated, looked for approching cars, but saw none. He then drove along the side of the avenue about fifty feet and, meeting with an obstruction, turned upon the track without again looking for cars, and the wagon was struck and injured by a car which approached rapidly from behind. Held, that the driver, in failing to look again before turning upon the track, was guilty of contributory negligence.
    .Appeal from a judgment of the District Court in the city of blew York for the eighth judicial district, rendered by the justice, without a jury, in favor of the plaintiff.
    
      Action for injuries to personal property.
    Plaintiff’s icecart, proceeding down town upon the tracks of the defendant, was overtaken and collided with by one of defendant’s cars, and was damaged to an extent for which recovery was sought and obtained in this action. The facts were that plaintiff’s driver, coming to Third avenue after proceeding in an easterly direction along the south side of Thirty-sixth street, turned the cart into the avenue at a walk and proceeded fifty feet on the westerly side, when an obstruction made it expedient for him to turn in upon the defendant’s track. The wagon was not fully upon the track when the collision occurred. Plaintiff’s servant, according to his testimony, had looked for approaching cars at the intersection of the street before turning into Third avenué, and had seen no car, but did not look again prior to the collision.
    The appeal is rested upon the plaintiff’s evidence, defendant having called no witnesses in ihe court below.
    
      Henry L. Seheuerman, for appellant.
    
      Browne do Sheehan, for respondent.
   Bisohoff, J.

The testimony given with regard to the force of the impact between the vehicles justifies the inference that the defendant’s car was proceeding at a high rate of speed immediately prior to the collision.

After plaintiff’s servant had looked for approaching danger at the intersection of the streets he turned his cart into Third avenue at a walk, and in the same- manner proceeded for a distance of fifty feet before turning in upon the track and had nearly brought the cart completely upon it when collided with by the car.

There is fairly room for. an assumption, then, that at the time when lie' looked up and down the track, as asserted, the car was not sufficiently near to call for notice as an element of danger, and hence his testimony that he did so look and saw no car may be credited, taking it in its natural sense.

Strictly speaking, it would be well nigh impossible for one to look up and down the tracks of a street railway, actively operated upon a. straight track of the extent of the line of this defendant at the location where the matters in suit occurred, and fail to see a car at some point, but to await such a situation of extreme safety is not the duty of one attempting to cross a track in a city street.

But if the car had actually come from a point where its presence was no source of danger to plaintiff’s cart when his servant looked up and down the track, to a point where it became a destructive agent during the time in which he proceeded at a walk while turning the corner and driving fifty feet along Third avenue at the same gait before turning in upon the track, then his failure to look again for danger at the point where he so turned in was in disregard of his legal duty, and contributory negligence is apparent from the admitted fact that he did not look at that time.

The judgment must be reversed, and since upon the admitted facts plaintiff could not succeed on a second trial, the complaint should be dismissed.

Bookstaver and Giegerioh, JJ., concur.

Judgment reversed and complaint dismissed, with costs.  