
    BERNHARD v. ROCHESTER RY. CO.
    (Supreme Court, General Term, Fifth Department.
    April 13, 1893.)
    Street-Railway Companies—Collision with Vehicles.
    In an action against a street-car company for damages resulting from a collision of defendant’s car with plaintiff’s wagon at a street crossing, where it appears that plaintiff’s wagon approached the crossing first, and when partially across was struck by defendant’s car, which was running at the rate of six or seven miles an hour, and the motor man’s view of the situation was equally as good as that of plaintiff’s driver, the refusal to direct a nonsuit is proper, as the car had no right to the crossing, superior to that of plaintiff’s wagon.
    Appeal from Monroe county court.-
    Action by Henry A. Bernhard against the Rochester Railway Company. Plaintiff had judgment on a verdict, from which, and an order denying a motion for a new trial, made on the minutes, defendant appeals.
    Affirmed.
    Argued before DWIGHT, P. J., and HAIGHT, LEWIS, and MA-COMBER, JJ.
    Charles J. Bissell, for appellant.
    John A. Bernhard, for respondent.
   HAIGHT, J.

This action was brought to recover the damages which the plaintiff sustained to his horse and wagon by reason of a collision with one of the defendant’s street cars. The defendant was engaged in operating a double track electric street railway in Lyell avenue, in the city of Kochester. The avenue runs east and west.Sherman street intersects the avenue at an acute angle from the northwest. The plaintiff was a grocer, and had a horse and wagon for the purpose of delivering groceries. His driver, with the horse and wagon, approached Lyell. avenue through Sherman street, and on reaching the avenue stopped to allow a westerly bound car to pass.' At this point 'he could see westerly on the avenue 200 feet. He looked, but saw no car approaching from that direction. As the westerly bound car passed, he started to drive across the avenué to the southerly side thereof. The horse and the fore part of the wagon had passed the southern track when the defendant’s easterly bound car struck the rear of the wagon, causing the damages complained of.

It is claimed on behalf of the appellant that there was no negligence chargeable to the defendant, and that the collision occurred through the negligence of the plaintiff’s driver, and that the trial court erred in denying its motion for a nonsuit, and in refusing to direct a verdict in its favor. We are of the opinion that no error was committed in this regard, and that these questions were properly sub-' mitted to the jury. The plaintiff’s driver testified that he did not hear the bell ring upon the defendant’s car, but other evidence tends to show that it was rung. We shall therefore assume that it was' sounded as testified by the defendant’s witnesses. The plaintiff’s driver was passing across the avenue'on an angle coming from Sherman street, in a covered wagon, with his back partially towards the approaching, car. He sat in the front of his wagon, and looked west as he entered the avenue. The westerly bound car, in a measure, obstructed Ms view, so that he did not see the car approaching upon the southerly track. He first approached the crossing, and was partly across when the collision occurred. The opportunity of the. defendant’s motor, man to see the approach of the plaintiff’s wagon was equally as good, if not better, than that of the plaintiff’s driver to see the approach, of the defendant’s car. The westerly bound car doubtless obstructed the vision, to some exten.t, of both the motor man and the driver; but it is apparent that, had the motor man been upon Ms guard, and had proper control of his car, he could have seen the wagon in time to have stopped Ms car, and avoided the injury. His own evidence is to the effect that he was running at a speed of six to seven miles an hour when he struck the wagon. Other evidence tends to show that he was running at a much higher rate of speed. That he-saw the plaintiff’s rig as it was coming out of Sherman street into the avenue. That the west bound car prevented him from seeing it for a while. That plaintiff’s horse and wagon were traveling diagonally across tibe track or street in the same direction that the car was going. That the horse was on a trot, and so continued until the wagon was struck. That when he first saw the wagon, after the car had passed, he was pretty near to it,—within six or eight feet. That he rang Ms bell, but the plaintiff’s driver did not seem to pay any attention to it. It thus appears that he,- approaching the plaintiff’s wagon, at a speed of six or seven miles per hour, from the rear, as it was passing diagonally across the track, thb horse on a trot, going "with the car, at the crossing where Sherman street enters the avenue, overtook the wagon, and ran into it. The plaintiff’s horse and wagon were lawfully in the street. The driver had a right to cross the defendant’s tracks, exercising reasonable care, and had the right to assume that the defendant’s motor man would exercise like care to prevent running into him. It was a public highway, and each party had a common right to its use. The defendant’s cars can only run upon the rails. They cannot turn to the right or left to avoid teams. They are therefore given a paramount right to the use of the tracks, but not an exclusive right. A person may lawfully drive along or upon the tracks, but he should not carelessly or willfully obstruct the passage of the cars, and, as one approaches, he should turn off from the tracks so as to allow it to pass, and in a reasonable manner respect the paramount right .of the corporation. On the other hand, the corporation must recognize the rights of the person, and not carelessly run bim down, but give the necessary time, and a reasonable opportunity, to move off from the tracks, and allow the car to pass. Such is the rule of the street. Fleckenstein v. Railroad Co., 105 N. Y. 655, 11 N. E. Rep. 951; Adolph v. Railroad Co., 76 N. Y. 530. But at a street crossing the rule is different. The car and the vehicle each have the right to crops, and neither has a superior right to the other. The right of each must be exercised in a reasonable and careful manner, so as not to unreasonably abridge or interfere with the right of the other. O’Neil v. Railroad Co., 129 N. Y. 125-130, 29 N. E. Rep. 84. The collision in this case, as we have seen, occurred at the crossing of Sherman street, or at the place where Sherman street intersects the avenue. The plaintiff’s driver was properly passing across the avenue, to the right side thereof, intending to continue east along the avenue. He first approached the track; was partially across when struck. The car had no superior right to the crossing, and the motor man, finding the vehicle in the act of crossing, should have timely, "slowed up, so as to have allowed it to cross in safety.

The judgment should be affirmed. All concur.  