
    Henry Shanley, App’lt, v. Union Railroad Company of New York City, Resp’t.
    
      (New York City Court, General Term,
    
    
      Filed November 26, 1895.)
    
    Negligence—Contbebutoíby.
    It is not contributory negligence, as a matter of law, for the driver of a. vehicle, who is within ten feet of a street railroad track, to attempt to cross the same, when the nearest car is two hundred yards away.
    Appeal from a judgment dismissing the complaint.
    
      M. P. O’.Gonnor, for app’lt; Hoadly, Lauterbach & Johnston, for resp’t.
   Fitzsimons, J.

This is an action for damages for the alleged negligence of the defendant. The trial judge dismissed the -complaint because of the plaintiff’s contributory negligence and the defendant’s freedom from negligence. The examination of the evidence shows that plaintiff and three other persons were driving down town along the Southern Boulevard in this city; and while driving across Boston avenue, along which defendant’s cars run, and when the horse’s head was about ten feet away from the westerly rail of the south-bound track, they saw one of the defendant’s cars going north, and about 200 yards away from them, towards the south; that they continued on, the horse being on a dog trot, and when their horse and part of the wagon had crossed over the north-bound track, the rear wheel of the wagon was struck by said north-bound car, and plaintiff was thrown out of the wagon and injured. This state of facts was sworn to by several witnesses.

The plaintiff certainly had a right to cross the defendant’s tracks, and defendant had a right to use its tracks for the ordinary streetcar uses. Both were required to exercise their respective rights in a careful and prudent manner, and whether or not they were doing so in this instance, it seems to me, after reading the appeal record was a question for the jury to determine. To say, as a matter of law that the driver of a vehicle, who is within, say, five yards of a street-railroad track in this city, is guilty of contributory negligence in attempting to cross the same, because the nearest car to him is 600 feet away, is carrying that doctrine of the law too far.

I can find no precedent which justifies such conclusion. The facts and circumstances of a particular case might justify a jury in so holding, but I think it error to so hold as a matter of law.' I therefore think it was error to dismiss the complaint upon the ground of plaintiff’s alleged contributory negligence. As to defendant’s negligence, it also seems to me that that question should have been submitted to the jury, and it was error to refuse to do so. x

The judgment must be reversed.

A new trial is ordered, with costs to the appellant to abide the event of the action.

All concur.  