
    James McGrane, Respondent, v. The Flushing and College Point Electric Railway Company, Appellant.
    
      Negligence — a brewery wagon standing on a track and waiting for a gate to open into a yard, struck by a motor can'..
    
    In an action based upon the negligence of an electric railroad company, it appeared that the plaintiff, who was driving a brewery wagon after dark, turned, in order to enter a gate upon the brewery premises (in which position the rear of his wagon, necessarily stood upon the tracks of the defendant), and that while he was waiting for the gate to be opened, the defendant’s car struck the wagon, and the plaintiff was thrown under the car and injured. The plaintiff stated that he could not well move from the tracks until the gate was opened, and that when he saw the car coming he hallooed repeatedly to the motorman. There was a conflict of evidence as to the distance at which the wagon could be seen by the motorman, hut a witness testified that at the time of the collision the motive power was on the car in full force.
    
      Held, that the questions of negligence and contributory negligence were for the . jury;
    That, as the plaintiff was legitimately on the street, seeking to enter the place of his destination, he could not he considered negligent as a matter of law.
    Appeal by the defendant, The Flushing and College Point Electric Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 8th day of June, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme. Court held in and for the county of Queens, and also from an order entered in said clerk’s office nunc pro fame as of the 3d day of June, 1896, denying the defendant’s motion for a new trial made, upon the minutes.
    
      Eugene L. Bushe, for the appellant.
    
      Samuel Campbell and Adolphus D. Pape, for the respondent.
   Bradley, J.:

The purpose of the action was to recover damages for personal ■injuries alleged to have been inflicted on the plaintiff by the negligence of the defendant. The plaintiff was engaged in driving a. brewery wagon or truck of the Mutual Brewing Company. The premises of that company fronted on Second avenue, between Tenth and Eleventh streets, in the village of College Point. In the evening of October 31, 1895, the plaintiff, returning from the city of New York, where he had taken a load of ale, entered upon the avenue at Ninth street, and drove upon the defendant’s railroad track on the avenue until he came about opposite to the place for entrance into the brewery premises. He turned his horses to enter, and, as the gate was closed, he called to a person in the yard to open it. His evidence is that such person at once responded and proceeded to the gate to open it, but that before it was done, to enable him to drive in, the defendant’s car came along; struck the wagon on which he was sitting holding the lines. By the collision the wagon and horses were suddenly knocked from their position, and the plaintiff was thrown from the wagon and under the car, and received injuries. The plaintiff testified that he could not turn to go into the brewery premises without having the wagon on the railroad track, and that when he had turned theliorses to the gate and stopped he first saw the car coming out of Thirteenth street into Second avenue, and that the wagon was then standing across the track, where it remained until the accident occurred. It took place about eight o’clock in the evening. The opportunity of seeing at any great distance was dependent upon artificial light. It appears that there was a headlight on the car, and that there were lighted lamps at the corners of Tenth and Eleventh streets on the avenue.

The motorman testified that .when he first saw the wagon it was moving towards the place from which the car was coming, seventy-five or eighty feet distant from him; that he stopped the car at Eleventh street, and that, when he started up the car, the wagon was standing across the track. This evidence of the motorman, that he saw the wagon moving towards him, is in conflict with that of the plaintiff, to the effect that the wagon could not have been seen from the car until it had stopped across the railroad track.. If such was the fact the motorman did not see the wagon until then. Another witness testified that he was on the car; saw the wagon before the car reached it; that after it struck the wagon he was out on the platform; observed that the power was on in full force; that he turned it off, and that he saw no attempt to pull down the trolley piole, and that upi to the time of the accident the car was going rapidly.

The question whether the pilaintiff was free from contributory negligence, as well as whether the defendant’s negligence was established, was a question of fact for the jury.. The plaintiff was legitimately on the street, seeking to enter into the pilace of his destination. The jury were permitted to find that he had reached the place where the wagon was struck before he could see the approaching car, and that he could not well move from there until the gate was opiened ; that when he saw the car coming he hallooed repeatedly to the motorman, and that he had some reason to supipose that the ■car would he stopped in time to avoid collision. And as the con.clusion is warranted by the evidence that the wagon, standing on the track, could, and, by the exercise of reasonable care would, have been seen from the car in time to have stopiped it before reaching the pilace where- the wagon was, the jury were permitted to find that the injury of the pilaintiff was attributable solely to the negligence ■of the defendant.

There was no error to the prejudice of the defendant in any of the rulings at the trial.

The judgment and order should be affirmed.

All coucurred.

Judgment and order unanimously affirmed, with costs.  