
    Royal D. Rounds, Appellant, v. Syracuse and Suburban Railroad Company, Respondent.
    Fourth Department,
    July 6, 1909.
    Railroad — negligence — collision between trolley ear and vehicle — facts raising question for jury.
    Action to recover for personal injuries. The plaintiff, driving a baker’s wagon from a private driveway, was struck by the defendant’s trolley car which was running at the,rate of fifty miles an hour and gave no warning of its approach. Evidence examined, and held, that it was error to dismiss the complaint as the defendant’s negligence .and the contributory negligence of the plaintiff should have been submitted to the jury.
    McLennan, P. J., and Robson, J., dissented.
    Appeal by the plaintiff, Royal D. Rounds, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 9th day of October, 1908, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Onondaga Trial Term.
    
      Joseph B. Murphy, for the appellant.
    
      Charles E. Spencer, for the respondent.
   Kruse, J.:

The plaintiff seeks to recover for personal injuries received in a collision with defendant’s trolley car, contending that the defendant was negligent in operating the car, and that he himself was free from fault.

The accident occurred about a mile east of the city of Syracuse, on the Genesee street road. The track upon which the collision occurred runs along the north side of the road. The plaintiff was driving a baker’s wagon. He had delivered some goods at a private residence, situate on the north side of the road, and was driving out of a private driveway, and while crossing the track was run into by an east-bound car and injured.

At the close of the plaintiff’s case the plaintiff was nonsuited upon the ground that the defendant’s negligence was not shown, and also that the evidence failed to show want of contributory negligence upon the part of the plaintiff. The exception of the plaintiff to that disposition of the case presents the only question for review here.

We think the case should have been submitted to the jury. The evidence tends to show that the car approached the place where the driveway intersects the railroad, going at the rate of fifty miles an hour, without giving any warning of its approach. On the west side of the driveway the view of an approaching east-bound car is obstructed by shrubbery and trees. The plaintiff drove to - within six or eight feet of the railroad track and stopped. ' He looked to the west (from which direction the car came), and listened, but he did not see or hear the car. He could see about fifty feet up the track to the west. He was just beyond a tree which was ten feet from the rail of the track nearest to him, so that his horses’ heads were close to the track, and so much nearer the track that 1 think the inference is permissible that the motorman could have seen the horses in time to have had the car under control as he approached the place of collision, since the track to the west is practically straight for 300 to 500 yards, although the plaintiff, seated in the front part of the wagon, could see only about 50 feet to the west, as before stated, because of the trees and shrubbery.

There were two cars going in the same direction. The first car was going at the rate of about twenty-five miles an hour, and was followed by another going at the rate of about fifty miles an hour. The plaintiff was struck by the second car. He testified that he brought his horses to a standstill just back of the north track, just so the first car went by; that he started to cross, pulled up, and looked to see if he could see a car; that the horses’ heads were then going across the track, and had not quite gone over the first rail; just about ready to step on the rail, and just as they were reaching to cross the south rail the car struck the wagon.

The defendant was required to use reasonable care in operating its cars along the highway, and whether it did so in approaching the private crossing at so great a rate of speed without warning was, we think, under the circumstances, a question of fact. Hor do we think the plaintiff guilty -of contributory negligence as a matter of law. That question, as well as whether the defendant was negligent was for the jury.

The judgment entered upon the nonsuit should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

All concurred, except McLennan, P. J., and Robson, J., who dissented.

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