
    Sarah Hill and John Hill, Respondents, v. The Brooklyn Heights Railroad Company, Appellant.
    Second Department,
    June 29, 1911.
    Railroad — negligence — street railway — collision with horse — sudden starting of car — charge.
    Where in an action to recover for injuries to a horse which was struck by a trolley ear, it appears that while the driver who saw the car standing at a street comer receiving and discharging passengers, was proceeding to cross the tracks, the car suddenly started, causing the injury, it is proper to charge “ that it was not negligence as a matter of law — contributory negligence — for the driver to attempt to cross that track when he saw'the ear standing on the other side.”
    Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiffs, rendered on the 7 th day of December, 1910, upon the verdict of a jury for $150.
    
      Francis It. Stoddard, Jr., for the appellant.
    
      L. & M. Blumberg, for the respondents.
   Hirschberg, J. :

The plaintiffs have recovered the value of a horse belonging ■ to them, which they were obliged to kill by reason of injuries sustained in a collision with one of the defendant’s surface cars at the junction of Grand and Leonard streets, in the borough of Brooklyn. The animal was the nigh horse of a pair which were being driven at the time of the accident ón a down grade on the right side of Leonard street and which were hauling a heavily loaded wagon. Approaching Grand street, where the defendant’s tracks cross Leonard, street, the plaintiffs’ driver' saw a car standing on the near track, part of the way across Leonard street, but at the time, as the evidence tends to show, in the act of receiving and discharging passengers. When the driver had about reached the track, and as he was proceeding to cross it, the car suddenly started towards him. He swung his horses sharply to the right in. an effort to escape the car, but the horse referred to was struck by the car fender and his leg broken. There is little, if any, conflict in the evidence, and the verdict of the jury is fully justified by the facts.

The appellant presents but a single exception on the appeal. The court charged the jury, at the plaintiffs’ request, “ that it was not negligence as a matter of law — contributory negligence— for the driver to attempt to cross that track when he-saw the car standing on the other side.” The charge was correct. Conceding that the circumstances disclosed by the evidence may have presented a question of the negligence of the driver-for the determination of the jury, as matter of fact, it could not be disposed of adversely to him as a question of law. (See McGurgan v. New York City R. Co., 121 App. Div. 519.)

The judgment should be affirmed.'

Present — Jestks, P. J., Hiesghbeeg, Búre, Woodward and Rich, JJ.

Judgment and order of the Municipal Court unanimously affirmed, with costs.  