
    Fred Lust, Respondent, v. Syracuse Rapid Transit Railway Company, Appellant.
    Fourth Department,
    January 11, 1911.
    'Railroad — negligence — collision of trolley car with vehicle.
    Where the plaintiff, driving a wagon containing a load of furniture, stopped at the curb which, was so near to the track of the defendant’s trolley line that a car coming behind could scarcely pass while, if he had gone to the other side of the street,- there would have been plenty of room, and his -property was injured 'by a collision with the car when it attempted to pass either by reason of" the narrow space, or because his horses moved the wagon toward the car, he cannot recover. > This, because there was no negligence on the part of the defendant, but at most an error of judgment upon both sides and the plaintiff by his action invited the car to pass.
    Appeal by the defendant, the Syracuse Rapid Transit Railway Company, from a judgment of the County Court of- Onondaga comity in favor of the plaintiff, entered in the office of the clerk of said comity on the 7th day of February, 1910, upon the verdict of a jury for thirty-five dollars, and also from an order entered in said clerk’s office on the lOtli day of February, 1910, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles E. Spencer, for the appellant.
    
      Stewart F. Hancock, for the respondent.
   Williams, J.:

The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide event.

The action was for negligence causing injury to plaintiff’s personal property. I do not think the -case was one where the jury should have charged the defendant with negligence. It was an accident for which .neither party was responsible. The plaintiff was driving along North Salina and Wolf streets in Syracuse with a load of furniture upon an ordinary farm wagon with a hay rack, and had a pair of horses. When he turned from Salina into Wolf street he saw one of defendant’s street cars coming behind him and going in the same direction he was. He was driving on the right-hand side of the street. When a few rods up Wolf street he drove as close to the curb as he could and stopped to allow the car to go by. It was close work for the ear to pass his load without striking it. He could have turned across to the left of the track and had plenty of room, or he could have continued up the street to the next cornér before stopping for the car to pass. He evidently supposed there was room to pass where he did stop. The car came up close to the wagon and stopped, and the conductor and motorman looked and apparently concurred with the plaintiff that there was room to pass. The car was started and went partially by, and then a chair which overlapped the hay rack caught a handle on the side of the car, and before the car could be stopped the damage to the furniture was done. If this were the whole account of the accident, I do not see how the defendant could be charged with negligence. It was at most an error in judgment upon both sides. The plaintiff by his conduct invited the car to pass by, believing it could do so safely, and the conductor and motorman in the sanie belief accepted thé invitation and attempted to go by. But there is an. additional fact, sworn to by several witnesses and lindisputed by any one, that after the.car started to pass the team and had gone partially by, the team moved the wagon towards the car and this was the cause of the collision. If this be true, the defendant certainly could not be charged with negligence. When tlie car started to ■ pass, it was assumed the team and wagon would remai,n still until tlie. car had gone by. The team and not the parties, any of them, was responsible for the injury to the furniture. But the plaintiff should have sought a place of safety before stopping to allow the car to go by. He could easily have donó so in either of the two ways heretofore suggested. Having failed to do so, he should not attempt to throw the whole burden of the accident upon the defendant. I do not.intend to suggest that'tlie car had a right to force its way by the team. It was not doing so, but using care, and the' only possible suggestion on plaintiff’s behalf is that there was an error in judgment on the part of the motorman and conductor. This verdict is not. a large one, and it may be suggested that the judgment and order had better be affirmed..and the litigation thus ended. Considerable costs have been added fo the verdict, and the amount involved now is not so small for the loss really suffered by the plaintiff.

All concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  