
    John W. Dunican, Appellant, v. Union Railway Company of New York City, Respondent.
    
      JTegligence — a person struck by a street cm while driving upon a highway from, a private road—the questions of negligence and contributory negligence me for the jury — duty of the driver of the car.
    
    The driver of a street car approaching a private road, at a time when he has reason to believe that persons are likely to come upon the highway from the private road, is bound to use the same care toward such persons that he would use toward persons crossing the highway at a public crossing.
    A person driving upon a highway from a private road is not called upon, as matter of law, to watch and listen for approaching cars before coming upon the highway, but may properly suppose that a motorman will'perform his duty of exercising care in approaching the crossing.
    Such a person has the right to cross the track in front of an approaching car, notwithstanding the fact that the driver of the car will be obliged to reduce its speed in order to permit him to pass in safety.
    In an action brought against a railway company by a person who, while driving upon a highway from a private road on a dark night, surrounded by people going in the same direction, was struck and injured by a motor car, evidence that the car was proceeding at the rate of upwards of fifteen miles an hour, giving no signal of its approach, although the motorman was aware that it was a usual thing for large numbers of people to be coming out of the private road at that time, and that the plaintiff, whose horse was walking, could not see the car until he was within ten feet of the track, requires that the questions of the defendant’s negligence and of the plaintiff’s contributory negligence be submitted to the jury.
    In such a case, even if the motorman were not aware that the private road was used by large numbers of people at that hour of the night, and if the plaintiff had been coming out of his own grounds, the question of the defendant’s negligence would still be one for the jury.
    McLaughlin, J., dissented.
    
      Appeal by the plaintiff, John W. Dunicaa, from a judgment of the Supreme Court in favor of the defendant, entered-in the office of the clerk of the county of Few York on the 21st day of June, 1898, upon the dismissal of the complaint by direction of the court, after a trial at the Few York Trial Term.
    
      Willard U. Taylor, for the appellant.
    
      Herbert R. Limburger, for the respondent.
   Rumsey, J.:

This action is brought to recover damages for injuries received by the plaintiff by reason of a collision with one of the defendant’s-■trolley cars which struck him as he was attempting to drive across the highway on which the defendant’s track was laid. Upon the-trial the court, after hearing the evidence of the plaintiff, dismissed the complaint, and from the judgment entered upon that dismissal this appeal is brought.

The place where the collision occurred was a public highway known as Yan Fest’s road in the county of Westchester. It was-shortly after nine o’clock at night of the Ytk of July, 1895. At the place of the occurrence a private driveway, from a summer resort known as Sulzer’s Park, debouches into the highway on the north side. The tracks of the defendant are laid upon the north side of the highway so that the track of a car going west is within a very few feet of the fence. On the east side of the private road, at its intersection with the highway, there stands a building extending along the highway about thirty feet, and running back forty-five, feet along the private road. The front of this building is within ten feet of the defendant’s track, and this space of ten feet is diminished by a stoop extending a few feet in front of the building. Back of this building, and on the east side of the private driveway, there are, as the plaintiff testified, trees and bushes which obstruct, the view to a very considerable extent to the eastwarcj, the direction from which the car was coming that inflicted the injury upon the plaintiff. At the time of the occurrence, it was quite dark. The plaintiff was driving, at a walk, a quiet horse down the private road towards the highway. He was surrounded by a lai'ge number of people who were also going from the park to the street-. As was generally the case at that hour of the night and at that season of the year, Sulzer’s Park, being a public resort, seems to have been largely frequented by people. As to these details of the occurrence, there is no dispute.

As the complaint was dismissed at the close of the plaintiff’s case, he is entitled, upon an examination of that ruling, to the most favorable inference which can be deduced from the evidence, and if any of the facts are contested or doubtful, it must be assumed that they would have been found by the jury most favorably for the plaintiff. (Rehberg v. The Mayor, 91 N. Y. 137, 141.)

As bearing upon the question of the defendant’s negligence, the jury might have found that this car approached the place where the private road intersected the highway at a high rate of speed — certainly fifteen miles an hour and upwards; that no gong was sounded nor other signal made to notify people upon the highway of its approach, and that going at that rate of speed the car drove upon the crossing without giving any signal and struck the plaintiff’s wagon, demolishing it and in juring the plaintiff. These facts would not only be sufficient, in our judgment, to require the jury to find that the defendant was negligent, but would go far to convict the griptnan of criminal negligence if he were indicted for that crime. Although the road from Sulzer’s Park to the highway was a private road, yet it appears from the evidence that the persons frequenting the park were generally at this hour of the night making their way out upon the highway. It must be presumed that the defendant’s gripman and conductors were aware of the situation of this park and knew of the location of this crossing. The privileges and corelative duties of a street car company upon a highway are well settled. It is not expected that the street car company, although operating its cars by machinery 'of high power and running at a high rate of speed, will go along the highway without stopping and without paying attention to the reciprocal rights of other passengers upon the highway, as a steam railroad is accustomed to do and must do to some extent. (2 Shear. & Redf. Neg. [5th ed.] § 485a.) But the street railroad, occupying as it does the highway which is free to all people equally with itself, and in which it has no exclusive rights, is bound to run its cars with proper care over the highway, with due regard for the safety of all people who have occasion and equal rights with it to the use of the highway. It is well settled that, at the intersection of two streets, a street car running along one highway has no right of way as against any other vehicle crossing its track on the other highway. (Kennedy v. Third Ave. R. R. Co., 31 App. Div. 30; Hergert v. Union Ry. Co., 25 id. 218; O’Neil v. D. D., etc., Ry. Co., 129 N. Y. 125.) The reason of this rule is that the highway is free to all persons. The street ears, running as they do in a fixed track, and being unable to turn out, have as to that track rights in the highway superior to those of persons who are going up and down on the same street; but as to persons who have occasion to cross the highway, the rights of the street car are precisely the same in kind as the rights of other persons and other vehicles. If the driver of the street car approaching a private crossing has reason to believe that persons are in the habit of coming upon the highway at the time when he is approaching, he is bound to use towards those persons the same care that he would be bound to use with regard to other persons crossing the street at any regular crossing. At all times he is bound to run his car in such a manner that he may give warning of the approach of his car to persons having occasion to cross the highway, and that he may be able, like the driver of any other vehicle (having in view the greater difficulty of regulating his car), to avoid running upon people who are attempting to cross the highway, or who have occasion to go across the track in turning their wagons around, or turning out to avoid other vehicles. In the particular case the jury might have found that, so far from making any effort whatever to give a signal of his approach, or keep his car in hand, the motorm-an was coming down noiselessly and at a rate of speed equal to that which is used by steam railroads upon their own tracks, where they have the exclusive right, and at places where they have no reason to expect to meet anybody. Clearly this was negligence of a gross kind. (2 Shear. & Redf. Neg. [5th ed.] § 485b.)

In considering the question of the plaintiff’s contributory negligence, this duty of the defendant must not be lost sight of. The plaintiff was not called upon as matter of law to watch and listen for the approach of this car using the highway as he would have been called upon to watch and listen at a country crossing of a railroad company going upon its own tracks, where it had an exclusive right; hut it was proper for him to take into consideration the duty of the defendant in running along the highway, and to suppose that that duty would he performed. (2 Shear. & Redf. Neg. [5th ed.] § 485c.) Even if he had seen this car'coming at a rapid rate of speed, 150 or '200 feet away from the place where he was approaching the highway, as the defendant claimed he might have done, he would have had the right to assume that the driver of the car would so reduce its speed, when he approached the entrance to this private driveway, that persons coming out upon the highway might have an opportunity to avoid him. But the jury might have found from this evidence that the plaintiff had no opportunity to see this car until he, seated in his buggy, had passed the corner of the. house which stood at the intersection of the two streets. At that time he would have been something less than 10 feet from the track, and the head of his horse would have been almost upon the track. Whether it was negligence for him to drive so close to the track without expecting that the car would be coming upon him at the rate of 15 miles an hour, when he reached that point and saw the car as close to him as it was, was clearly a matter for the jury. He had the right to cross the track, even though the car was approaching, and even though the fact of his crossing required the car to slacken its speed (Kennedy v. Third Ave. R. R., 31 App. Div. 30); and whether he had sufficient opportunity to observe the approach of the car, or used due diligence in his effort to avoid it after he became aware of its situation, was clearly a matter for the jury to determine.

The fact that this was a private driveway, upon which the learned justice at the Trial Term seems to have laid considerable stress, was not controlling in this connection, because the jury might have found from the evidence that it was a usual thing at that time of night fer a large number of people to be coming out of this driveway upon the highway, and that the railroad company’s employees, who were traveling along the highway, were aware of that usual condition of affairs. But even if that were not so, and the plaintiff was coming out of his own grounds, he still had the right to assume that the street car would be managed with a due regard for his right to go upon the highway, and it would be for the jury to say, in this case, whether, in view of all the circumstances, the defendant was guilty of negligence in crossing the entrance to private grounds from this highway. In either aspect the case was clearly one for the jury, and the judgment dismissing the complaint must be set aside and a new trial ordered, with costs to the appellant to abide the event.

Barrett and Patterson, JJ., concurred ; McLaughlin, J., dissented.

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