
    Michael McDonald, Resp’t, v. Third Avenue Railroad Company, App’lt.
    
      (Supreme Court, Appellate Term, First Department,
    
    
      Filed, Feb. 26, 1896.)
    
    1. Negligence—Contributory.
    
      A driver,- in attempting to cross a cable car track while a car is 150 feet distant, is not, in law, guilty of contributory negligence because a collision results through failure of the gripman to make any effort to moderate the speed of the car.
    8. Same.
    In such case, he has a right to reply upon the observance, by the grip-man, of reasonable care.
    Appeal from a judgment in favor of plaintiff.
    Henry L. Scheuerman, for app’lt; John W= Hutchinson, Jr., and Walter S. Newhouse, for,resp’t.
   BISCHOFF, J.

This action was for injuries resulting to plain-tiff’s wagon from a collision with one of the defendant’s cable cars, and from a judgment for the plaintiff the defendant appeals,

But one question is presented to us by the appellant, and this, is whether there was contributory negligence, as matter of law, upon the part of the plaintiff’s driver. - Upon the facts, however, which are practically undisputed, we„must unhesitatingly hold that the appellant’s contention is unfounded. Plaintiff’s drivel-proceeding along Twenty-Fourth street, approached Third'avenue from the east, and when within 5 feet from the defendant’s easterly car track he observed a car upon that track approaching from a point one block distant, and another car approaching upon the westerly or down track, at a distant of three-quarters of a block. When his wagon, driven at an ordinary speed, was upon the westerly track, this second car-was suddenly discovered to be but 18 feet away, and despite his • efforts to escape, the collision- occurred. There is no question as to the actual negligence of the defendant’s servant. He gave no signal of his rapid approach, and appears to have made not the slightest effort to stop, or to moderate the speed of the car, although the plaintiff’s wagon must have been in sight, and about to cross the track, while this car was about 150-feet distant, according to very credible testimony.

In view of the position' of the vehicles it was certainly not the plaintiff’s duty to wait for the car to pass. He had the right to reply upon the observance, by the gripman of reasonable care, when he attempted to cross the tracks at the point noted, and the attempt itself was obviously justified. The point where the question of the plaintiff’s exercise of care arose was when the car was three-quarters of a block away, not when it had come to within 18 feet of the wagon, through the entire disregard of the plaintiff’s rights upon the part o.f the individual controlling it. Were it negligence for a driver to attempt a crossing under such circumstances, it might be urged that the highway in question were better closed to all except the employes of the railroad company- ,

Judgment affirmed, with costs.

All concur.  