
    Louisa Wilhelmina Geipel, Respondent, v. The Steinway Railway Company of Long Island City, Appellant.
    
      Negligence —failure of a motorman to see an approaching horse and wagon.
    
    In an action where negligence was, charged against a corporation which owned a railroad operated by electricity, it appeared that the width of the roadway between the railroad track and an outer embankment was only about nine or ten feet; that when the motor car in question was from seventy-five to one hundred feet away the horse of the plaintiff, which was approaching the car, became frightened, reared and backed the wagon on the track; that the plaintiff held up her hand, made motions and hallooed to'the car to stop, but it was alleged that the motorman did not notice this, as he was looking in another direction. The car was going at the rate of ten miles an hour, and could have been stopped in a distance of fifteen feet.
    
      Held, that a verdict for the plaintiff would not be disturbed.
    Appeal by the defendant, The Stein way Railway Company of. Long Island City, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 16th day of April, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office nune pro tune as of the 15th day of April, 1896, denying the defendant’s motion for a new trial made upon the minutes.
    
      Jesse Johnson and Eugene L. Bushe, for the appellant.
    
      Almet E. Jenks, for the respondent.
   Bbadley, J.:

The plaintiff, when proceeding northerly on Lockwood avenue, in Long Island- City, in her two-wheeled vehicle drawn by one horse, driven by her, was injured by collision with the defendant’s trolley car, going in the other direction. The plaintiff charges that the collision and injury were attributable solely to the negligence of the defendant. The evidence on the part of the plaintiff tends to prove that the roadway for wagons there was narrow, only about nine or ten feet between the railroad track and the outer embankment ; that when the car was from seventy-five to one hundred feet away, approaching, the plaintiff’s horse became frightened and began to rear and back up and backed her wagon on to the railroad track; that she then held up her hand, made motions and hallooed for the car to stop ; that the car did not slack its speed, but proceeded rapidly up near to or at the point of collision, and that when the plaintiff gave such signals she did! not get the attention of the motonnan, because he was not looking in the direction the car was going, but that his attention Was then being given to a ball, game going on off in another direction.

There is a distinct and irreconcilable conflict in the evidence introduced by the parties respectively bearing upon the main issue,, and we cannot undertake to say where the truth is on the subject further than to conclude that the. jury found and reflected it by the verdict. It is quite evident that the plaintiff’s wagon was not, nor was her horse on the railroad track at the time of the collision, but were so near the track that in some manner the wagon and. horse were struck by the car, or by reason of the fractious movement of the horse it and the wagon came in contact with the car when it reached the place where they were, causing the plaintiff’s injury. The evidence on the part of the plaintiff tends to prove that the car struck the horse and wagon. The precise manner in which the collision occurred may not be an essential fact, and it is not so if the situation of the plaintiff, with her horse and wagon, was such as to have required the motonnan, in the exercise of reasonable care, to slack Up or stop his car when at such distance from the place of the accident as to enable him to do so and he •did not.

It concededly appears by the evidence that the car, when going ■at the rate of ten miles per hour, could be stopped in fifteen feet. And if, as the evidence on the part of the plaintiff tended to prove, her situation was apparently one of danger (if the car. proceeded as it was going) when it was* seventy-five to one hundred feet away, and such situation should, and by the exercise of ordinary care would, have been seen by the motonnan, and the car continued to go rapidly up to or near the point of the accident, the conclusion was permitted that the defendant was chargeable with negligence, and that such negligence was the cause of the calamity. Also that the plaintiff was free from contributory negligence. Whatever view we may have had of the case if the evidence had come to us for an original determination upon the merits, we cannot, in view of the fact that the jury saw and heard the witnesses, say that their verdict, founded upon the conflict in the testimony of the witnesses, is against the weight of .the evidence.

There appears to be no error to the prejudice of the defendant in any rulings at the trial. Nor is it evident that the verdict was excessive in amount.

The judgment and order should be affirmed.

All concurred, except Bartlett, J., not sitting.

Judgment and order unanimously affirmed, with costs.  