
    Witte v. Brooklyn City Railway Company.
    (City Court of Brooklyn
    General Term,
    June, 1893.)
    Plaintiff was driving a wagon along the tracks of defendant and while in the act of turning off therefrom, an electric car coming from behind struck the hind wheel of his wagon and overturned it, causing the plaintiff the injuries complained of. A verdict was rendered for plaintiff. Held, that the case was properly submitted to the jury. That it was the duty of plaintiff to turn off seasonably to avoid the car approaching from the rear, and while so doing, the motorman was bound to exercise proper care to avoid a collision. That the question of negligence was for the jury.
    
      Appeal from a judgment in favor of the plaintiff entered on a verdict and an order denying a new trial on the minutes.
    The plaintiff was driving two horses attached to a brewery wagon filled with boxes of bottled beer. He drove down or west on Twenty-eighth street till he came to Third avenue, and turned into the west track of defendant’s street electric railroad. After driving a little way in a southerly direction, a car came along behind him and he turned into the east track to allow it to pass. When it had passed, plaintiff turned back into the west track between Thirtieth and Thirty-first street on Third avenue. He then drove along Third avenue on the west track till he reached near Thirty-second street, at which point he intended to turn out of the avenue into Thirty-second street in a westerly direction. He swung his wagon slightly to the left so as not to get stuck or caught on the track and then turned to the right facing his horses down or west on Thirty-second street. The horses had drawn nearly the whole of the brewery wagon off the track when a rapidly moving electric car came up suddenly from behind the brewery wagon and struck the hind wheel of it very hard, overturning the wagon and knocking the plaintiff out upon the ground causing the injuries complained of.
    
      Jas. & T. H. Troy (Oha/rles J. Patterson, of counsel), for plaintiff (respondent).
    
      Morris de Whitehouse, for defendant (appellant).
   Clement, Ch. J.

The counsel for the appellant seeks a reversal in this case only on two grounds: First, that the evidence showed contributory negligence on the part of plaintiff ; second, that there was no proof of negligence of the defendant. The plaintiff drove a beer wagon in a southerly direction along the track of defendant on Third avenue in this city until he reached Thirty-second street, where he swung his wagon to the east, in order to get out of the track, and then turned to the west. The wagon was nearly off the track when an electric car struck the hind wheel and overturned it.

This case was properly submitted to the jury. It was the duty of plaintiff to turn off seasonably to avoid the ear approaching from the rear, and, while so doing, the motorman was bound to exercise proper care to avoid a collision with the wagon. Whether the plaintiff was guilty of contributory negligence, and whether the motorman was negligent, were questions of fact for the jury. Quinn v. Atlantic Avenue R. Co., 12 N. Y. Supp. 223; affirmed, Court of Appeals, without opinion, 134 N. Y. 611.

Judgment and order denying new trial affirmed, without costs.

Osborne, J., concurs.

Judgment and order denying new trial affirmed.  