
    Henry J. Wilson, Respondent, v. United Traction Company, Appellant.
    
      Negligence—injury to one removing a trunk from an express wagon, by reason of its being struck by a street ca/r, v/pan the railway of which it was at the time being bacleed by the horse.
    
    In an action brought to recover damages for personal injuries sustained by the plaintiff, it appeared that during the evening on which the accident occurred, the plaintiff was assisting the driver of an express wagon; that for the purpose of delivering baggage at a house on the west side of a street on which the defendant maintained a double-track street railway, the driver drove southerly along the street; that on arriving at the house, he found a covered wagon in the space between the west rail and the curb; that he turned in towards the curb immediately south of the wagon, and stopped with his horse facing southerly and the wagon extending from the curb diagonally towards the track and from three to six feet from the covered wagon; that the distance from the curb to the westerly rail was ten and a half feet; that while the plaintiff was standing with his back to the wagon for the purpose of putting a piece of baggage upon his shoulder one of the defendant’s south-bound cars which approached on the westerly track struck the rear wheel of the express wagon and some portion thereof struck the plaintiff and injured him.
    The plaintiff did not pay any particular attention to the position of the wagon and neither he nor the driver of the wagon saw the collision. It was dark at the time of the accident, but the street was lighted. The motorman testified that he did not see anything except the covered wagon until he reached a point opposite that wagon when he saw the express wagon backing off from the curb; that as soon as he saw the express wagon, he attempted to stop his car, but could not" do so in time to prevent the collision; that the car was traveling at the rate of six or seven miles an hour.
    
      Nehl, that as the evidence given by the motorman was wholly uncontradicted, and established the fact that- the collision would not have occurred had- the horse of the express wagon not backed that wagon further to the east just as the car approached it, a judgment entered upon a verdict in favor of the plaintiff could not be sustained.
    
      Appeal by the defendant, the United Traction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk, of the county of Rensselaer on the 24th day of October, 1903, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 24th day of October, 1903, denying the defendant’s motion for a new trial made upon the minutes.
    
      Patrick O. Puga/n, for the appellant.
    
      Thomas F. Powers, for the' respondent.
   Chase, J.:

The defendant maintains a double-track trolley railroad in Second street in the city of Troy. During the evening of the 3d day of March, 1902, the plaintiff was voluntarily assisting a driver of an express wagon in delivering express packages. Such driver had two pieces of baggage to deliver at 305 Second street, and then his wqrk in delivering packages for the day would be tinished. He drove south on Second street. Plaintiff sat on the seat of the wagon with him. When they arrived at 305 Second street they found a covered undertaker’s wagon standing between the curb and the west track of the defendant’s road. The driver turned his wagón west from the railroad track immediately south of the undertaker’s wagon, so that the horse was facing the south, and the wagon stood from the curb diagonally up the street, and from three to six feet from the undertaker’s wagon. The distance from the curb to the west rail ryas ten and one-half feet. The driver said he did not see a car approaching, and he further says, “ I kind of glanced and kind of thought in my own mind the car would clear me.” He took a piece of baggage into the house, and the plaintiff, after standing a short time, pulled and lifted the remaining small piece of baggage to the wing of the wagon, and turned his back to the wagon intending.to take the piece of baggage on his shoulder, and, while so standing, one of the defendant’s cars struck a rear wheel of the wagon without injuring the wagon, but it resulted in some part of the wagon hitting the plaintiff, throwing him upon the sidewalk, and causing the injury for. which this action is brought. The plaintiff did not pay any particular attention to the position of the wagon, and neither the plaintiff nor the driver of the wagon saw the collision. It was dark, but the street was lighted. The defendant’s motorman testified- that he was going south on Second street, and saw the undertaker’s wagon, but that there was nothing else in the street that could be seen, until he reached a point about opposite the undertaker’s wagon, and that then he saw the express wagon backing off from the curb. He says he approached the undertaker’s wagon at about six or seven miles an hour, and that he knew that he should be careful, and had put on his brake. He says that as soon as the express wagon was in sight he stopped his car as quickly as/ it could be stopped, but not until it had struck the wheel of the wagon as stated.

The car did not strike the undertaker’s wagon and there is no evidence whatever that the express wagon was left standing where the same could be seen by the motorman when he was looking south past the undertaker’s wagon, or that the same would have been hit if the horse had not backed the wagon further to the east just as the car approached it. The testimony of the motorman stands wholly uncontradicted. On the evidence before us the judgment in favor of the plaintiff cannot be sustained.

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

All concurred.

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