
    Otto Gruhn, Appellant, v. Brooklyn Heights Railroad Company, Respondent.
    (Supreme Court, Appellate Term, Second Department,
    September, 1915.)
    Negligence — contributory — street railways — dismissal of complaint.
    A dismissal on the merits of the complaint in an action to recover damages resulting in injury to property is error where defendant offered no evidence nor rested upon plaintiff’s case; the error, however, may be cured by striking out “ on the merits ” if the judgment be proper.
    It is not the law that the driver of a vehicle about to cross a 'street railway track must always stop to permit an approaching car to pass, no matter how great its distance when first seen may be. Ordinary prudence permits the driver in such ease to cross the track if the approaching ear is at the time he starts to cross 400 feet distant, as he has a right to assume that the motorman will have his car under control at a street crossing and to rely to some extent on that assumption.
    As the driver of plaintiff’s milk wagon at about 4 A. m. was about to turn into a street and was crossing the street railway track the wagon was hit by a trolley car which struck one of the hind wheels and practically demolished the ‘wagon, scattered the milk bottles, broke the harness and injured the horse. Plaintiff’s wagon had two lights on it and there were electric lights in the street. The driver looked before starting to cross and saw the trolley car about 452 feet away. Held, that a dismissal of the complaint on the merits, on the ground that the driver was guilty of contributory negligence as matter of law, was error, as the question of the driver’s contributory negligence was a question for the jury.
    Appeal from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, third district, rendered April 5,1915, in favor of the defendant, dismissing the complaint on the merits, with costs. The action was brought to recover damages for negligence resulting in injury to property.
    John Klein, for appellant.
    A. C. Mayo, for respondent.
   Benedict, J.

This action was tried by a justice sitting with a jury. At the close of the plaintiff’s case the court dismissed the complaint upon the merits with fifteen dollars costs, upon the authority of Woodward v. New York Railways Co., 164 App. Div. 658. The stenographer’s record differs from the judgment in that it states that the dismissal was without prejudice; but the judgment is controlling on this point. The dismissal should not have been “ on the.merits,” as the defendant had offered no evidence, nor had it rested upon the plaintiff’s case. This error might be cured by striking out the obnoxious words if the judgment of non-suit were correct. In my opinion it was not proper.

It would appear from the judgment that the court held that the plaintiff’s servant was guilty of contributory negligence as a matter of law, and for this he relies upon the Woodward Case, supra. In that case, however, which was decided by three out of five justices of the Appellate Division, first department, the facts were quite different from those shown herein.

In the present case the plaintiff’s servant was driving a milk wagon along Myrtle avenue on the right hand side of street in an easterly direction towards Bichmond Hill at about four o ’clock in the morning on September 18, 1914. As he approached Folsome avenue, the driver saw a car approaching from the opposite direction about two blocks away at Lafayette avenue. The distance between Folsome and Lafayette avenues is 452.91 feet. He wished to turn into Folsome avenue; and, as he was about to do so and was crossing the tracks, the wagon was hit by the trolley car, which struck one of the hind wheels and practically demolished the wagon, scattered' its contents," consisting of milk bottles, broke the harness and injured the horse. The plaintiff’s wagon had two lights upon it, and there were electric lights in the street. The plaintiff looked before starting to turn across and saw the trolley car about two blocks away. He judged that the car was standing still when he saw it, but the judge struck out the statement as not responsive to the question asked on his cross-examination whether the car was coming fast and plaintiff excepted.

The court apparently thought the driver should have looked more than once, but it is clear that he looked as he started to turn across the track, and seeing the car at a considerable distance away he turned across. There was here no failure to exercise due care and prudence unless we are prepared to say that a driver must always stop to permit an approaching car to pass, no matter how great its distance, when first seen, may be. This is not the law, nor would it be reasonable. It would seem that ordinary prudence would permit a driver to cross a street railway track if the approaching car was at the time he started to cross 400 feet distant. The driver had a right to assume also that the motorman would have his car under a proper degree of control at a street crossing and to rely, at least to some extent, upon that assumption. Ordinary prudence is all that is required; and, if that be shown, the plaintiff should not be non-suited but is entitled to have the question of his contributory negligence submitted to the jury to decide upon the evidence.

The judgment should be reversed, with costs in this court and a new trial granted.

Maddox and Crane, JJ., concur.

Judgment reversed, with costs, and new trial granted.  