
    Jay Robinson, Respondent, v. Crosstown Street Railway Company of Buffalo, Appellant.
    Fourth Department,
    March 6,1907.
    Negligence — collision between vehicle and trolley car coming from behind — contributory negligence.
    Action to recover for personal injuries. '
    The plaintiff was driving a load of hay, the wheels of his vehicle running on the right-hand track of the defendant’s electric road. A trolley car coming from behind sounded its bell when 500 feet distant from the plaintiff as a warning to leave the track. The plaintiff turned his team to the left so that the car. could pass him, hut, upon the car slowing up, immediately turned to the right' for the purpose of crossing the track when he was struck and injured. It. was shown that the motorman used every endeavor to stop the car after the plaintiff made the second turn and , that the plaintiff had not looked behind from the time when he first saw the car 500 feet away. '
    
    
      Held, that it was error to ref use to charge that if the plaintiff drove'' so as to be free from the car and then turned toward the track without any precaution, he was negligent and could' not recover.
    ■ Williams, J., dissented.
    Appeal by the defendant, the Crosstown Street Railway Company of Buffalo, from an order of the County Court of Erie county, entered in the office of the clerk of said county on the 17th day of April, 1906, denying the defendant’s motion fór a new trial made upon the minutes, a-verdict having been rendered by the jury in favor of-the plaintiff for'$200.
    
      Charles B. Sears, for the appellant.
    -Philip A. Laing, for the respondent.
   .Spring, J. :

The plaintiff on the 21st day of March, 1-904, was struck by one of defendant’s trolley cars on Abbott road, in the city of Buffalo, and was injured, and, brings this action to recover fór such injuries.

Abbott road runs in an easterly and westerly direction, and two tracks of the defendant are operated along it, the outside rail of either track being about nine feet from the curb. The plaintiff Was driving east with a large load of hay on adiayrack drawn by two: horses, his wheels running on the defendant’s southerly or right-hand track. The defendant’s car was following him' on the same track and, when near Abbey street, about 500 feet away, the motorman began sounding the gong, to warn the plaintiff of the approach of the car so that he might: get off the track.' The plaintiff intended to have his hay weighed on á pair of hay scales' which was in an alleyway at his. right hand as he was going east, and he turned his team to the left, clearing the track on which he had been traveling, sufficiently so that the car could pass him, then turned to the right for the ■ purpose of crossing the track and reaching, the hay scales. H,e had nearly crossed the ti;ack when- his wagon was hit by the defendant’s- ear. The car contained quite a number of passengers and the proof shows clearly that the motorman sounded the-gong back 500 feet or more and continued to do so until the plaintiff had cleared the track sufficiently to enable the car to pass. The motorman also slowed down his car, but after the wagon had got over the track he accelerated its speed, and when the horses in their turn again got on the east-bound track the motorman reversed the lever and endeavored to stop the car, but claimed he was unable to do so.

The evidence is-very slight to show any negligence on the part of the defendant. Several witnesses, among them passengers who were on the car, testified to the warning signal, to the slowing down of the car and to the fact that the load of hay had cleared the track three or four feet, so that there was ample room for the car to pass before the motorman increased its speed. Two or three witnesses also testified to the attempt of the motorman to stop the car after the turn had been made.

The motorman had a right to assume that the plaintiff left the track in response to the warning which had been given and for the purpose of allowing the car to pass.

But, if we assume that the motorman might have stopped his car after the horses had reached the track in their turn, I think that the plaintiff was guilty of contributory negligence as matter of law.

He testified that he looked back when he started to make the turn in order to reach the hay scales and saw the car approaching, about 500 feet away, and he did not look again at all.. His version is as follows: £' The first I knew that a car was coming was when I started to turn out of their right-hand track, I looked back, I saw a car way back; that was when I began- to turn to the left. The car was back near Abbey Street. I have measured, or assisted in measuring, that distance from Abbey Street to the-scales; the distance is about 500 feet. This was about two o’clock in the afternoon. It was a. fair day. After I looked bach a/nd saw the car near Abbey Street, I did not see the car again until 1 was struck?

Further, on cross-examination, he says: “ I did not give the car any further thought.” And again“ On this occasion I raised up once and saw that car.” And he further testified that he was in the habit of making the- turn to the left or over the parallel track for t.he purpose of allowing an approaching car to pass him; as he said: With a load of hay I turn to. the left-hand side of the street to let the car-go by. ' That is what I did on this occasion, I turned toward the leftz-liand side of the street.”

We have this situation, therefore:. Plaintiff, driving on the. defendant’s track knowing that, a car is approaching him, .turns With a view of making a wide curve with a long load of hay for the purpose of crossing the street, takes one glance back-when he first starts on his course and, does not again look toward the car at all. I think within the cases he was guilty of contributory negligence as matter of law. (lynch v. Third Ave. R. R. Go:, 88 App. Div. 604 MaEntee v. Met. St. R. Go., 110 id.. 673.;; Bofstenv. BrooMyn Heights R. R. Go., 184 _H. Y. 148.)

The plaintiff testified that he did not hear any warning. . He does not pretend that he-was paying any attention, and a warning was unnecessary ('Lynch v. Third Ave. R. R. Go., supra), for -he knew the car was approaching; but the evidence is overwhelming that the warning Was given.

There is an error in the charge, which, it seems to me, in -any event must require a reversal of this judgment. ' When the plaintiff made the turn he was not at a street intersection. The court charged the jury that “ the defendant’s car had the paramount -right of way superior to that of vehicles, and that it was the duty of the driver of this hay wagon to use reasonable care to keep out of the way of approaching, cars.” He was then asked to charge, as follows : “I ask your Honor to charge the. jury that-if plaintiff drove so as to be. free from the cars, so as to-be free from the cotirse of this east-bound, car, out of that course, and then turned toward the driveway without any precaution,-taking, no precaution for his safety,_ he was guilty of negligence and cannot recover.” The .court-responded: “I think I will leave that to-the jury.” The' defendant was entitled to this instruction. The evidence tended -to . show at least that the plaintiff,- after he had left the track on which he. was traveling," turned again without looking back or giving any heed to the approaching car, although he knew it was coming. If so, he was not -entitled to recover, and that was the gist of the request. ' "

Tlie order should be reversed and the motion for new trial granted, with costs to appellant to abide event.

■ McLennan, P. J., Kruse and Robson, J J., concurred on the ground of error in the charge discussed in the opinion; Williams, J., dissented.

Order reversed and motion for new trial granted, with costs to appellant to abide event.  