
    The Boston & Providence Dispatch Express Co., Respondent, v. The Metropolitan Street Railway Co., Appellant.
    (New York Common Pleas
    Additional General Term,
    August, 1895.)
    The act-of a driver in hastening his team immediately behind a, passing car and upon the adjoining track before he or the gripman of a car 'approaching from the opposite direction had opportunity to see that a collision was impending, is contributory negligence.
    Appeal by the defendant from a judgment, entered upon the verdict of a jury, in favor of the plaintiff, in the District Court in the city of New York for the first judicial district. ■ The nature.'of the action and the material facts are stated in the opinion:
    
      Henry A. Robinson, for appellant.
    
      Morris TPÍ Hart, for respondent.
   Giegerioh, J.

This action was brought to recover the value of a horse, which was. injured, so as to be worthless, in a collision with a Broadway cable car.

The plaintiff’s servant was driving the horse, which was attached to an express wagon at the time, eastward along Bleecker street, and the accident happened just as the horse was upon the easterly, or so-called up-track, of the Broadway line.

The jury brought in a verdict for the plaintiff, in the sum of $250, the full amount claimed.

.No explanation was given by the driver of the plaintiff’s wagon why he failed to see the approaching car, except the remarkable one that this car was going so fast that it would be impossible to see it.” This, taken in connection with his-statement that he waited for a down-town car to pass before-he attempted to cross, and the testimony of the gripman of the upward-bound car which caused the injury, and of the. passenger Miller, who was riding on the front platform,' that, the horse appeared suddenly upon the track before them, immediately after the down-town car had passed, convinces us-that the driver did not exercise such care in looking for the-approach of cars as prudence demands at such a dangerous crossing as this intersection of two busy thoroughfares is'conceded to be.

From the facts shown, it is plain that he hastened immediately behind the down ward-bound car and had driven his. horse upon the up-track before either he or the gripman of the approaching car had any opportunity to perceive that a. collision was impending. This contributory negligence should,, of course, preclude any recovery by the plaintiff.

For these reasons, the judgment should be reversed and a. new trial ordered, with costs to the appellant to atílde the. event.

Bischóef,! J., concurs.

Judgment reversed and new trial ordered, with costs to. appellant to abide event.  