
    John J. Geoghegan, Appellant, v. Union Railway Company of New York City, Respondent.
    First Department,
    December 6, 1907.
    Railroad — negligence — collision between surface car and wagon — erroneous nonsuit.
    The plaintiff, driving southerly upon the north-bound track of the defendant at . night when the city streets were frozen and. slippery, was struck and injured by a car coming from the south as he was about to leave the track. The wagon was lighted and the car moving at the rate of eight miles per hour. On all the evidence
    
      Meld, that a nonsuit was error, the defendant’s negligence apd the plaintiff’s contributory negligence being questions for the jury.
    Appeal by the plaintiff, John J. Geoghegan, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 11th day of January, 1907, upon the dismissal of the complaint by direction of the court, at the close of the plaintiff’s case oñ a trial at the Hew York Trial Term.
    
      Stephen C. Baldwin, for the appellant.
    
      Joseph F. Daly, for the respondent.
   Houghton, J.:

The plaintiff in the night time, was driving in a baker’s cart, ’southerly on Webster avenue in the city of Hew York. Shortly before the accident there had been a fall of snow, which had melted and frozen, making the roadway slippery. At’ the sides and between defendant’s tracks the road was rough and icy as the result of sweeping the snow therefrom. To- obtain a better footing for ¡his horses, plaintiff had taken defendant’s south-bound track, and when at- about One Hundred and Eighty-second street a car came j up behind him, and to permit it to pass he pulled over to the north;bound track. He had proceeded but a short distance on that track when he observed a car coming towards him from the south, and as .'he testifies, he immediately endeavored to drive back upon the south-bound track. He had to use, care that his horses did not fall, and before he succeeded in clearing the track the car struck the ''flank of the near horse and the wagon, throwing him therefrom and inflicting the injuries for which he complains. A lighted lantern was attached to the front part of the top of the wagon, and the motorman, called by the plaintiff, testified that his car was going at the rate of about eight miles an hour.

The trial resulted in a nonsuit from which the plaintiff appeals. We.are of the opinion that the facts testified to by the plaintiff and his witnesses made it proper for the jury to determine whether or not defendant was guilty of negligence and whether the plaintiff, under the circumstances, exercised due care.

It is true that the plaintiff was at the time of the accident on the wrong track and on a track which the defendant’s motorman had no reason to expect he would be approaching. The condition of the roadway, however, in the minds of the jury, may have been such as to excuse plaintiff in driving where he did, and also in not sooner leaving the north-bound track after he discovered the' approaching car. So, also, they might have said that in view of the lighted lantern on defendant’s wagon, aided by the headlight of the car, the -motorman, in the exercise of reasonable care, should: have discovered plaintiff’s vehicle sooner than he did, or in view of the moderate speed of the car, have sooner stopped it or have made greater effort so to do; '

! The plaintiff made a prima facie case and had the right to have a jury pass upon the facts for or against him, and the nonsuit was improper and the judgment must be reversed and a new trial granted, with costs to the appellant to abide the event,

Patterson, P. J., McLaughlin, Lahghlin and Lambert, JJ., concurred.

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