
    Albert I. Piercy et al., Respondents, v. The Metropolitan Street Railway Company, Appellant.
    (Supreme Court, Appellate Term,
    February, 1900.)
    Negligence — Mutual rights of vehicle and street car at street intersection — Contributory negligence, a question of fact.
    At the intersection of two streets, the driver of a vehicle has a right to cross the tracks of a street surface railroad, although a car is in sight, provided there is reasonable opportunity for him to do so; and if, for that purpose, it is necessary for the person in charge of the motive power of the car, to check its speed, or even stop it entirely for a short period, it is his duty to do so; and the driver has a right, without necessarily being chargeable with negligence, to assume that the duty will be performed.
    The rights of the driver and those of the person in charge of the motor power, are, in such case, reciprocal.
    The question, whether it is a negligent act for a driver to cross a track when a street car is approaching, depends upon the circumstances of each case, and should be submitted to the jury.
    Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, entered in favor of the plaintiffs, for $176.84, damages and costs, upon the verdict of a jury.
    The opinion states the nature of the action, and the facts, so far as they are material.
    Henry A. Robinson and John T. Little, Jr., for appellant.
    Oliver C. Semple, for respondents.
   Griegerich, J.

The action is to recover damages for injuries to the plaintiffs’ wagon, harness, and the uniform of their (Liver, under the circumstances hereinafter stated. The answer denied that the accident was due to the negligence of the defendant’s servants, and alleged the contributory negligence of the plaintiffs’ driver. .

The latter testified that, on August 8, 1899, at about eleven o’clock in the forenoon, he was driving a horse drawing a delivery wagon easterly along Thirty-ninth street, and that, when within ten feet of the westerly crossing on Sixth avenue, he looked up and down that thoroughfare and saw one of the defendant’s cars coming from a northerly direction upon the westerly track, one hundred feet away; that while driving the horse at a “ moderate trot” across Sixth avenue and looking for other vehicles and pedestrians that might be on the other crossing,” the wagon was struck on the “ north hind wheel ” by the car in question, thereby causing it to be overturned and the driver thrown from his seat, and causing the injury to property in question. Three other witnesses to the accident were called by the plaintiffs and gave theL respective versions thereof. The testimony of one of them differed with that of the driver as to the location of the wagon at the moment of impact, but, as is to be assumed from the verdict, the jury were content to credit the driver, whose testimony, in this respect, was corroborated by the remaining witnesses. Another witness for the plaintiffs testified that the wagon was leaving the west crossing on Sixth avenue as the car reached the northerly crossing of the street in question, and that the car was then further from the point where the collision occurred than the wagon; but the jury evidently came to the conclusion, upon the testimony of the three other witnesses for the • plaintiffs, that this witness was mistaken upon the point. Aside from this, the evidence adduced in plaintiffs’ behalf tends to show that the motorman made no effort whatever to check the speed of the car, and that he gave no warning of its approach to the plaintiffs’ driver.

The motorman, on the other hand, testified, that when his car was within ten feet of this northerly crosswalk he observed the wagon coming along at a good smart trot; ” that he rang his gong, threw off the power and applied the brake, that the driver then slackened up, from which action he assumed that the driver desired him to pass by, and acting upon such understanding, the motorman again turned on the power and released the brake, and just as the car got over the northerly crosswalk, the horse, which was not held in check, crossed the track at a prancing gait, and, although the motorman sounded his gong and reversed the power, he was unable to prevent the fender of the car from striking said wheel of the wagon. The conductor, the only other witness called by the defendant, gave testimony to the effect, that when the motorman observed the wagon he slackened up his speed ” so that the ear came very nearly to a standstill, but went on again ” when the speed of the horse was slackened, and as the car proceeded upon its journey the horse pranced ahead, and, the lines being loose in the driver’s hands, he was unable to check or stop the horse, and avoid the collision.

In rebuttal the plaintiffs’ witnesses denied that the speed of the horse was lessened when approaching the track, that the lines were held loose in the driver’s hands, and that in crossing such track the horse pranced.

At the close of all the evidence the defendant moved to dismiss the complaint on the ground that the plaintiffs had not shown by a fair preponderance of evidence, either that the accident was caused by the defendant’s negligence, or that the former was free from contributory negligence, which was denied, and an exception taken. The case was submitted to the jury, who found a verdict in favor o'f the plaintiffs for $150, and the defendant has brought on the appeal. The only grounds upon which the reversal of the judgment is sought are the same as those urged in the court below for a dismissal of this complaint.

The rule applicable to a casé like this, as deduced from the authorities, is, that at the intersection of two streets the driver of a vehicle has a right to cross the tracks of a street surface railroad, notwithstanding a car is in sight, provided there is a reasonable opportunity so to do, and, if, for that purpose, it is necessary for the person, having charge of the motive power of the car, to check its speed, or even to entirely stop such car for a short period, it is his duty to do so, and the person crossing the track has the right, without being necessarily chargeable with contributory negligence, to assume that that duty will be performed; that the rights of the driver of the vehicle, and of the person in charge of the motive power of such car, under these circumstances, are reciprocal, and that the question, whether it is negligence on the part of the driver of a vehicle to cross the track when a car is approaching, is dependent upon the circumstances of each case. Smith v. Metropolitan Street R. Co., 7 App. Div. 253; Misc v. Metropolitan Street, R. Co., 22 Misc. Rep. 97; Kennedy v. Third Ave. R. R. Co., 31 App. Div. 30; Dunican v. Union Railway Co., 39 id. 497; Lawson v. Metropolitan Street R. Co., 40 id. 312. As was said by Rumsey, J., speaking for a majority of the court, in the last-cited case (p. 313): The question in every case is: Did

the approaching parties, the cardriver on the one hand and the person crossing the track on the other, use the ordinary care of reasonably prudent persons to avoid a collision under the given conditions? In the nature of things, that question must always be submitted to the jury.” The cases of Weiss v. Metropolitan Street R. Co., 33 App. Div. 221; Johnson v. Brooklyn Heights R. R. Co., 34 id. 271, and Bossert v. Nassau Electric R. R. Co., 40 id. 144, have no application to the case at bar, because in the Weiss case the accident did not occur at a street intersection, and in the other cases the wagon proceeding along and not across the track, was struck by a car coming from behind. Upon the evidence adduced in behalf of the plaintiffs, the jury were justified in finding, as is assumed from their verdict, that the negligence of the defendant’s motorman was the direct and sole cause of the accident. The latter admits having seen the-horse crossing the track as the car approached the northerly crosswalk, and that he could have stopped the car within twelve feet. The driver was entitled to assume, when he drove over the track, that the motorman would afford him that reasonable opportunity of crossing to which the law gave him the right. Instead of that, however, it appears, according to the facts found by the jury, that the motorman made no effort whatever to stop the car and to avoid the collision, and, for the latter’s failure so to do, and for the injuries resulting from such carelessness, the defendant must be held answerable, unless the plaintiffs have been guilty of contributory negligence.

Under the circumstances disclosed by the evidence on the part of the plaintiffs, it could not be said as a matter of law that their driver was guilty of contributory negligence in attempting to cross the tracks of the defendant. As seen, this was a question of fact to be determined by the jury. The proposition whether, under the circumstances, it was prudent or imprudent for the driver to attempt to cross such track, was decided by the jury in plaintiffs’ favor, and such finding is, to my mind, warranted by the evidence. As the driver was bound to anticipate at the crosswalk the probable presence of pedestrians, and to be on his guard to avoid injuring them (Murphy v. Orr, 96 N. Y. 14; Curtin v. Metropolitan Street R. Co., 22 Misc. Rep. 83), he was not, as might be claimed, required to be constantly on the lookout for the defendant’s cars in crossing the same. He therefore also had a right to assume that the speed of the car would be checked for the purpose of enabling him to observe this duty. My conclusion, therefore, is that this was clearly a case for the jury. There was ample evidence of negligence on the part of the defendant’s motorman in the management of the cai’, and of the freedom from negligence of the plaintiffs’ driver. The jury having found upon both these questions in favor of the plaintiffs, which finding was not in disregard of the due weight of proof, their verdict should not be disturbed. It follows from these views that the judgment should be affirmed, with costs.

Beekman, P. L, and 0’Gorman, L, concur.

Judgment affirmed, with costs.  