
    Morris Miller, Respondent, v. The Buffalo and Lake Erie Traction Company, Appellant.
    Fourth Department,
    March 6, 1912.
    Railroad—negligence — rear-end collision between trolley car and vehicle — negligence and contributory negligence, when questions for jury.
    Action against a railroad company to recover for personal injuries. The plaintiff while driving a wagon at night, on leaving a city and reaching a macadam road whieh'was in bad condition, drove with his wagon wheels between the tracks of the defendant’s trolley line, that portion being paved with brick. He testified that he looked back every minute or two and could have seen a car for nearly half a mile, but did not discover one. The defendant’s car, without sounding a bell or giving other warning, ran into the plaintiff’s wagon from behind at such speed as to kill the horse and injure the plaintiff, the motorman being unable to stop the ear until it had proceeded over 100 feet beyond the point of collision.
    
      Meld, that the negligence of the defendant and the contributory negligence of the plaintiff were questions for the jury, and that a judgment for the plaintiff should be affirmed.
    A person driving upon a street car track who was struck by a car coming from behind at an excessive rate of speed and without warning, cannot be held guilty of contributory negligence as a matter of law because he did not look back oftener than once in every two or three minutes.
    It is immaterial that the defendant’s motorman claimed to have sounded the gong immediately before the collision, as such warning was not timely and gave no chance for the plaintiff to leave the track.
    Appeal by the defendant, The Buffalo and Lake Erie Traction Company, from an order of the County Court of Chautauqua county, entered in the office of the clerk of said county on the 27th day of September, 1911, affirming a judgment of the Municipal Court of the city of Dunkirk in favor of the plaintiff rendered on the 18th day of April, 1911, for $537.65, and also from a judgment of said County Court entered on the 27th day of-September, 1911, upon said order of affirmance.
    
      Charles F. Blair, for the appellant.
    
      Nelson J. Palmer, for the respondent.
   Kruse, J.:

The plaintiff was driving a horse and wagon on Central avenue in the city of Dunkirk. A car came from behind and a collision occurred, without fault upon the part of the plaintiff, as he claims, and through the carelessness of the defendant’s motorman.

The collision occurred on the night of November 25, 1910, at about ten o’clock. The plaintiff was a junk peddler. He had several bags of junk in his wagon. He had one horse and was sitting in the front of the wagon driving. He drove on the side of the street, between the track and the curb, until he came to where the macadam was in bad condition, which was not until after he had reached the Dunkirk city line. The street between the curb and the railroad tracks was muddy, stony and rutty, so he drove with his right wheels between the two rails of the track, where it was paved with brick. While it was at night, there were electric lights along Central avenue, and streets intersected the avenue. His horse was jogging along, as he says, about five or six miles an hora1. As he was driving along he claims that he looked back every minute or two. A car could be seen for nearly a half a mile, but he did not discover the car. The car was lighted, but it is not very clear just how much. No bell was rung or other warning given, and the motorman did not discover the plaintiff and his rig upon the track in time to avoid the collision.

The car was going at the rate of fifteen or twenty miles an horn, as one of the witnesses says, and others say it was going but eight to ten miles an hour. How fast it was going in the open country, beyond the city line, may to some extent be inferred, if the plaintiff is truthful in stating that he looked around as often as every minute or two, and did not see the car, which could be seen for a half a mile. However, when the car struck the plaintiff it was going enough faster than he was driving to break the wagon, kill the horse, hurt the plaintiff and go some distance beyond the point of the collision, one of the witnesses says 100 to 150 feet, before it was stopped.

There does not seem to be much doubt about the carelessness of the motorman, at least the jury was warranted in so finding. It is, however, contended that the plaintiff was guilty of contributory negligence as a matter of law. It would seem that that question was also one for the jury. But it is said that this court has decided otherwise upon similar facts in the case of Geleta v. Buffalo & Niagara Falls Railway (88 App. Div. 372; affd., 181 N. Y. 524). There the injured plaintiff was driving along a highway in the open country, between Buffalo and Tonawanda. The road was in good condition between the curb and the track, and there was no necessity for his driving upon the track. It was dark; there were no street lights; it was snowing; the track was slippery, and perhaps he should have anticipated that the motorman might not be able to see him in time to avoid a collision. He looked around only once in two minutes. In that respect the case seems to be like this. But I am not aware that it has ever been held that a person driving upon a street car track in a city is guilty of contributory negligence as a matter of law if he does not happen to look hack for an approaching car oftener than once in every two minutes and is struck by a car going at an excessive rate of speed, without giving him any previous warning at all. It is expected that a motorman will have his car under control at street intersections, and even in the block go at a reasonably safe rate of speed, and give timely warning to persons who may happen to be on the track ahead of him. A person so driving upon the track has a right to rely, at least to some extent, that ordinarily a motorman does not run him down without giving him some warning. Of course, if the person so driving upon the track is himself careless, he is precluded from recovering for his injuries, even in such a case, if his carelessness contributes to the result.

It should be stated in this connection that the motorman claims that as soon as he discovered the plaintiff he put on the brakes and sounded the gong, and that is all he had time to do before the collision. But unless the warning was given in time it, of course, would do no good; and it is very evident that it was not, because it could hardly be expected, even if the plaintiff had heard it, that he could get off the track in time to avoid the collision if the motorman, knowing that a collision was imminent, could not stop his car in time.

I think the judgment and order should be affirmed, with costs.

All concurred..

Judgment affirmed, with costs.  