
    (52 Misc. Rep. 591)
    MacGUIRE v. NEW YORK CITY RY. CO.
    (Supreme Court, Appellate Term.
    February 11, 1907.)
    Stbeet Railboads—Collisions—Actions—Contbibutoey Negligence.
    In an action against a street railway company for injuries to a carriage and horses in a collision with a north-bound car, the driver testified that, after stopping to let a south-bound car pass, he drove onto the north-bound car track without looking for a car, and that there was nothing ahead of the north-bound car to prevent the motorman from seeing the carriage. Plaintiff, sitting on the back seat of the carriage, testified that he saw the north-bound car approach a block away, and knew that the carriage stopped to let a south-bourid car pash, and that he did not say anything to the driver. Held to show, as a matter of law, contributory negligence, precluding a recovery.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 44, Street Railroads, • §§ 210-216.]
    Appeal from Municipal Court, Borough of Manhattan, Seventh District.
    Action by Constantine J. MacGuire against the New York City Railway Company. From a judgment of the Municipal Court rendered in favor of plaintiff, defendant appeals. Reversed, and new trial ordered.
    Argued before GILDERSLEFVE, MacLEAN, and AMEND, JJ.
    William E. Weaver, for appellant.
    Joseph H. Fargis, for respondent.
   GIDDERSLEEVE, J.

The plaintiff and a Dr. Mandel were sitting on the back seat of plaintiff’s victoria, which was drawn by two horses driven by a coachman, along Twentieth street towards Broadway. There was an obstruction in front of them, which caused them to slow up, and when the obstruction moved away the carriage proceeded slowly to cross Broadway. The coachman waited for a south-bound car to pass, and then moved slowly across. A north-bound car came along and struck the forepart of the carriage, causing damage to'horses and carriage, for which the justice allowed plaintiff $500.

It is not contended that this amount is excessive, if defendant was liable at all. The defendant’s appeal is based on the claim of contributory negligence. The plaintiff’s coachman testifies thus:

“Q. Did you see any north-bound car? A. I did not see the north-bound car until the horses were about on the track, and we were ready to cross the east side of the tracks. * * * I was looking out for the traffic coming from the other way—whether there were any vehicles on the other side of the track. I did not see the car until it was right against the horse. Q. Was there anything on that track to prevent the motorman from seeing your carriage? A. No, sir. There was nothing ahead of the north-bound car. Q. (on cross-examination). When this car hit you, it was almost the first you knew fhat there was a car coming from the south—just before it hit you? A. .Yes, sir; that is the first I knew of it.”

It would seem from the testimony that plaintiff’s servant drove right in front of the north-bound "car, without looking at all to see if any car was coming from the south, or taking any precaution whatever for his safety, or that of plaintiff and his horses and carriage, after stopping tb let the south-bound car go by, and before driving upon the northbound tracks. He says there was nothing ahead of the north-bound car, and nothing to prevent the motorman from seeing his carriage. He could, therefore, presumably have seen the car before crossing the north-bound track, and avoided the accident. It seems to us that upon his own showing plaintiff’s driver was guilty of contributory negligence. See Little v. Third Ave. R. R. Co., 83 App. Div. 330, 82 N. Y. Supp. 55; Vonelling v. Met. St. Ry. Co., 35 Misc. Rep. 301, 71 N. Y. Supp. 751.

Plaintiff himself claims he saw the north-bound car rapidly approaching from Nineteenth street, at which street it made no stop. Plaintiff’s carriage then stopped, as we have seen, until the south-bound car had passed. It is urged by defendant’s counsel in his brief that plaintiff must have known that by this time the north-bound car was pretty close at hand, and that the south-bound car might to some extent obstruct the view of the motorman of the north-bound car, so far as plaintiff’s carriage was concerned, and that plaintiff said nothing to his driver, but ran his risk of getting over before the car struck him. We are of opinion that plaintiff did not satisfactorily establish his freedom from contributory negligence.

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