
    Louis Meyer, Appellant, v. The Brooklyn, Queens County and Suburban Railroad Company, Respondent.
    
      Negligence — collision where a driver turns a wagon across a trolley ca/r track at a sloib walk.
    
    In an action to recover damages for personal injuries it appeared that the plaintiff was driving a wagon southerly along a street, in the borough of Brooklyn, on the right or south-bound track of a trolley railroad operated by the defendant; that just before reaching a point opposite a store on the left side of the street, at which he intended to deliver some goods, he-proceeded to cross the north-bound track at a slow walk until only the hind wheels of the wagon, or the projecting part of the load, was in the line of the north-bound track, when the wagon was struck by a north-bound car and the plaintiff was thrown to the ground, receiving the injuries complained of. The plaintiff’s witnesses estimated the distance of the car, at the time he reached the north-bound track, at from 75 to 200 feet.
    
      
      Held, that upon the evidence the questions of the defendant’s negligence and the plaintiff's contributory negligence were for the jury, and that it was error for the court to dismiss the complaint.
    Qoodbich, P. J., dissented. .
    Appeal by the plaintiff, Lonis Meyer, from a judgment of the Supreme Oourt in favor of the defendant, entered in the office of the clerk of the county of Kings on the 3d day of April, 1899, upon a nonsuit granted by the court after a trial before the court and a jury at the Kings County Trial Term.
    
      George F. Elliott [Henry Escher, Jr., with him on the brief], for the appellant.
    
      John L. Wells, for the respondent.
   Per Curiam :

The plaintiff was driving a truck or business wagon loaded with wooden ware along Broadway in the borough of Brooklyn, on which the defendant maintains and operates a trolley railroad. He was driving southerly along the street in the right-hand or south-bound track intending to deliver some part of his load at a store, No. 585 Broadway, which was on the other side of the street. -Just before he reached a point opposite the store he turned to cross the railroad track and had proceeded so far across that only either the hind wheels of the vehicle or the projecting part of his load was in the line of north-bound track when the loaded vehicle was struck by a northbound car and the plaintiff thrown to the ground. For the injuries then caused to his person and to his property the plaintiff brought this action.

We are of opinion that the court should not have held as matter of law that the plaintiff was guilty of contributory negligence, but submitted that question to the jury. The chief reliance of the respondent is on the case of Meyer v. Brooklyn Heights R. R. Co. (9 App. Div. 79), decided by this court. In that case the plaintiff was driving a buggy along Fulton street, in the borough of Brooklyn, and when about seventy-five feet distant from a cross street started diagonally on a walk to cross the tracks. - At that time a car was approaching from the opposite direction and was about one hundred and fifty 'feet away. We held that the .plaintiff was guilty of contributory negligence which precluded a recovery. But this case is markedly different. It is true that the plaintiff did not start to cross the intervening track exactly at right angles, but the variation from a direct crossing was but slight and was rendered necessary, by the character of the vehicle which he> was driving and its load. The horse^and vehicle occupied a space of some sixteen feet, and it would be necessary to straighten them out alongside of the curb when they reached the store or shop where part of the load was to be delivered. For this reason a deviation from an absolutely perpendicular crossing may have been justified. The plaintiff testifies that, at the time he started to cross, no car was in sight. His witnesses place the distance of the car at the time he reached the north-bound track at from seventy-five to two hundred feet. On this appeal the plaintiff is entitled to have the evidence in his behalf considered in the most favorable light in which a jury could have viewed it. Besides this there remains the undisputed fact that though the plaintiff was driving at a slow walk with a loaded vehicle, the horse and the greater part of the vehicle had passed beyond the track at the time of the collision. From this fact we. think a jury might well find that, when the head of the horse was either on the track or so near it as to indicate the intention of the plaintiff to cross, the car must have been at such a distance away that, had it been properly managed, the collision would have been avoided..

The judgment appealed from should be reversed and a new trial granted, costs to abide the event.

All concurred, except Goodrich, P. J., who read for affirmance.

Goodrich, P. J. (dissenting):

I cannot see enough difference between this case and Meyer v. Brooklyn Heights R. R. Co. (9 App. Div. 79) to warrant the. conclusion reachéd by Mr. Justice Cullen.

In the latter case the plaintiff was driving up Fulton street at night. Wishing to cross the diowntown track he looked up and saw it brightly-lighted car coming down on that track 150 feet away. He gave no sign to the motorman of his intention to cross, but walked his horse across the track diagonally for a distance of two houses when his carriage was struck by the car. The front of the •carriage was struck. (See record.)

In the present case, at a crossing somewhat similar, the plaintiff, who was either in the uptown track or just outside of it, desiring to •cross the downtown track, looked, as he says, saw no car and then -attempted to cross that track. The rear wheel of' his vehicle was -struck. When his horse was on the down track and the wagon yet •on the uptown track he saw a car approaching. Evidently that car must have been visible by him when he says he first looked, so that the old doctrine respecting a man looking and not seeing or not looking, to see ought to apply.

I make this suggestion, believing this case to be “ perilously near ” "the other Meyer case.

Judgment reversed and new trial granted, costs to abide the ■event. 
      
       This opinion was written by Hr. Justice Cullen before his designation as an associate judge of the Court of Appeals, and is adopted by this court. The decision of the court was rendered after such designation was made.
     