
    John T. Burns, Appellant, v. New York and Long Island Traction Company, Respondent.
    Second Department,
    June 10, 1910.
    Railroad — negligence — collision in. street — practice — reserving, decision on motion to dismiss — reinstating verdict.
    Where in an action to recover for personal injuries it appears that the plaintiff, • driving in the night time along a street occupied by car tracks, found himself behind a farm wagon going in the same direction; that the wagon was so near the curb at the right that it would have been difficult or impossible to pass between the wagon and the curb; that he turned out to pass on the left side, and while so doing encountered a manhole between the tracks and turned still further out to avoid it; that while he was in this position and going about seven or eight miles an hour, a car came suddenly around a curve less than 200 feet in front of him at the rate of twenty miles an hour, in violation of a city ordinance,. and without giving any warning ran into his carriage before he could turn off the track, the question of the plaintiff’s contributory negligence is for the jury.
    Where decision on a motion to dismiss is reserved and the jury renders a general verdict for the plaintiff in a certain sum and the motion to dismiss is then granted, the Appellate Division cannot reinstate the verdict, but" must reverse the judgment and order a new trial.
    Appeal by the plaintiff, John T. Burns, from a .judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 17th day of December, 1909, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Queens County Trial Term, and also from an order entered in said clerk’s office on the 3d day of March, 1909, directing the dismissal of the complaint.
    
      
      M. Spencer Bevins [S. C. Sugarman with him on the brief], for the appellant.
    
      L. E. Quigg [Bayard H. Ames, Walter Henry Wood and Van Vechten Veeder with him on the brief], for the respondent.
   WOODWARD, J. :

This is an action to recover for personal injuries. The plaintiff was driving on Fulton street in the borough of Brooklyn, in the direction ’ of Jamaica, on the 4th day of December, 1907. As he neaféd Can- • dace avenue he foünd himself in the rear of a.farm wagon which was being driven along the west-bound track of the defendant’s double-track surface railroad so near the curb line that it was difficult if not impossible to pass between the wagon and the curb. At least there was evidence from which the jury might have so found in reaching a verdict. The testimony of the plaintiff, supported by other witnesses, was to the effect that he desired to drive faster than the farm wagon; that he. was going at the rate of seven or eight miles an koiir and turned in on the left-hand side of the'farm wagon, and onto the eastboUnd track of the defendant’s railroad, for the purpose of passing the wagon, intending to return to the. west-bó.Und.^track. He had passed the farm wagon and started to turn back into the right-hand side of the roadway when he encountered a manliole between the tracks, and .to avoid this, he returned to the east-bound track or near it, and had just avoided the obstruction when he was confronted with the headlight of the defendant’s car coming around a sharp curve, less than 200 feet away and running at the rate of twenty miles ah' hour in violation of a city ordinance’ and without ringing a gong or blowing-a whistle. In this situation the plaintiff testified that he attempted to increase the speed of his horse in an effort to "get back onto the west-bound track, but before he succeeded in reaching a point of safety the defendant’s car collided with his rear wheel, wrecking the carriage and producing the injuries for which he now seeks recovery. The learned justice presiding reserved decision upon the defendant’s motion to dismiss on the ground of contributory negligence, but after the jury returned a-verdict for $2,500 in - . favor of the plaintiff the motion to "'dismiss -• the complaint was granted, and from the judgment and 'Order entered" the plaintiff appeals to this court. ..... -

We are of the opinion that the evidence in this case demanded that the question of the plaintiff’s contributory negligence should be submitted to the jury. The accident occurred about nine o’clock in the evening; the plaintiff had a right to drive upon the defendant’s tracks, using reasonable care to preserve to the defendant its paramount use of the highway within the limits of its right of way, and when he turned out to' go around the farm wagon he had a right to rely upon the defendant operating its car in a lawful manner and with due regard to the rights of other persons lawfully upon the streets. The plaintiff as a prudent driver had a perfect right to watch the way in front of him and to avoid manholes and their covers, and when he was confronted by this rapidly moving car, approaching in violation of the ordinances of the city, he was called upon to exercise only reasonable care ; he was not bound to clear the track under all circumstances; he was simply called upon to exercise reasonable care. His horse, he says, was going at the rate of seven or eight miles an hour — about twice as fast as a man can walk — and he tried to accelerate this speed and to get out of the way. He was exercising some degree of care in his driving, assuming that the plaintiff testified truly, and the mere fact that he did not exercise sufficient cafe to absolutely clear the defendant’s track before an oncoming car is not conclusive against him; the jury were to determine what a reasonably prudent man, in the presence of the negligence of the defendant, was called upon to do, and it was not for the court to determine this question as one of law.

We are of the opinion, however, that this case is not one where we are called upon to restore the verdict of the jury. The learned court reserved decision upon the motion to dismiss until after the jury had passed upon the issues presented, but, when the jury reported a verdict for $2,500, the court acted upon the reserved' motion and dismissed the complaint, thus taking the question away from the jury. The effect was exactly the same as though the motion had been granted at the time it was made, and before the case went to the jury at all. It was pointed out by this court, Mr. Justice Burr writing, in the recent case of Russell v. Rhinehart (137 App. Div. 843), that the practice of reserving decision upon a motion for a nonsuit, and. then taking a general verdict from the jury, is not only unauthorized by the Code, but is in some respects unfair, since, if the motion' is ultimately granted, and the appellate court is of the opinion that it ought not. to have been, the defendant is then put in a position where he is deprived' of the action of the trial court upon a motion for a new trial on the ground that • the verdict is against the weight of evidence, a motion which, ás we have heretofore pointed out, is one which the justice presiding at the triar is peculiarly fitted to pass upon. (Azzara v. Nassau Electric R. R. Co., 134 App. Div. 167.) The verdict of the jury in this case having, been a general one, and the motion reserved by the court having been finally granted, we are of the opinion that the reasoning of Mr. Justice Buee in the case cited above is conclusive here, and that there is nothing to be done except to reverse the judgment and order and direct a new trial.

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

Jenks,. Bueb, Thomas and Cabe, JJ., concurred.

Judgment and order reversed and new trial granted, costs to. abide the event;  