
    The New York Condensed Milk Co., Respondent, v. The Nassau Electric Railroad Co., Appellant.
    (Supreme Court, Appellate Term,
    October, 1899.)
    Negligence — Contributory, of driver in leaving his wagon on railroad tracks under circumstances preventing its being easily discovered.
    A driver of a milk wagon, painted white, who, after a heavy snow storm, leaves it, before sunrise, unattended, on the track of an electrie railroad corporation, in order to deliver, by hand, milk in an adjoining street through which he might with care have driven his team, is guilty of such contributory negligence as precludes his recovering from the corporation any damages for injuries received by his wagon from a collision with an electric car.
    Appeal by the defendant from a judgment of the Municipal Court, first district, borough' of Manhattan, rendered in favor of the plaintiff.
    John M. Ward, for appellant.
    Thomas M. Eowlette, for respondent.
   MaoLeab, J.

The defendant appeals herein to set aside a recovery for injury done by one of its cars to a milk wagon, with its contents left upon a railway track a little before sunrise, while the driver went down a side street to deliver milk to three customers, half way down the block. As stated by the driver, the wagon was painted white, and without lights. The snow was piled up on either side of the railway track, and there had been a fall of snow during the preceding night, so that the side street was covered to the depth of twelve or fourteen inches, so deep that he thought he could not drive through it. The superintendent of the company admitted that, though difficult, it was possible to drive through the snow upon the side street, and a truckman, called as a witness by the plaintiff, testified that he had driven, just before the accident, through the next side street, which was in the same condition as the one upon which the customers lived. As the driver knew, cars were constantly passing and to be expected, yet he left his wagon upon the track, where it was not likely to be seen, for although there may have been bright moonlight that morning, the place of the collision was dark, because it was covered over by the structure of the elevated railway. This was gross carelessness, contributing to the accident, and, therefore, the judgment should be reversed.

Ebbed max, P. J., and Levebtritt, J., concur.

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