
    William Walsh, Respondent, v. The Atlantic Avenue Railroad Company of Brooklyn, Appellant.
    
      Negligence—an accident caused by the furious speed, of a ca/r—na/riance between pleading and, proof— charge as to looking for the car.
    
    The complaint, in an action based upon the alleged negligence of a railroad corporation, stated, in substance, that while the plaintiff was driving a dirt cart out of a cellar upon a street, he looked to see if any car of the defendant was coming and saw none, but that when he was about on the track a car approached at a furious rate of speed, to avoid which he immediately turned his horses round, and that by reason of their perilous position the horses shied, throwing the wagon against the curb and precipitating the plaintiff from his seat to the ground.
    
      Held, that testimony of the plaintiff that the car struck the hind wheel of his wagon; that his horses went off their feet and hit the forward part of the wheel of the wagon against the curb and threw him off, was competent, within the pleadings, upon the question whether the furious rate .of speed of the car, coupled with the attempt of the plaintiff to get out of the way, caused the accident;
    That a charge that if the plaintiff looked and there was no car in sight when he drove into the street he could not be charged with negligence, was proper, there being a distance of sixty-five feet from the place at which he came upon the street to the corner around which the car came.
    Appeal by the defendant, The Atlantic Avenue Railroad Company of Brooklyn, from a judgment of the Supreme Court in favor ■of the plaintiff, entered in the office of the clerk of the county of Kings on the 8th day of February, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of February, 1897, denying the defendant’s motion for a new trial made upon the minutes.
    
      James R. Soley, for the appellant.
    
      James D. Bell, for the respondent.
   Goodrich, P. J.:

The defendant runs a line of street cars up Washington street, Brooklyn, turning to the left into Concord street. The complaint •alleges that the plaintiff was carting dirt from a cellar which was being excavated on the north side of Concord street between Washington and Adams streets, and that while so driving out of the cellar to the street he looked to see if any car of the defendant was coming along, and could see none; that when he was about upon the track he discovered a car “ bearing down upon him .at a rapid and furious rate of speed without stopping or attempting to slow up, and that, finding himself in a position of peril, he immediately swung his horses round to avoid injuries to himself and his property. That, by reason of the perilous position said horses were placed in through the negligence and carelessness of the defendant and the rapid rate of said car, the said .horses took fright, started up, shying, throwing the wagon against the curb, precipitating plaintiff from .his seat to the ground,” doing him serious injury.

It will be observed that it was not alleged that the car collided with the wagon, but at the trial the plaintiff testified : I thought to get out of the way, but' it struck my hind wheel; my horses bounced right clean up and struck the" forward part of the wheel against the curb and threw me off.” The defendant’s counsel moved to strike out the evidence which related "to a collision, as incompetent, irrelevant and immaterial, and not within tile pleadings. The court denied the motion and stated that no collision was alleged; that the plaintiff was not seeking to recover on the ground of collision, and that such collision was a mere incident of- the whole affair. The defendant excepted. No motion was made by the plaintiff to amend the complaint. In the charge the court said: I am not submitting to you the question whether this car came down and' negligently came into collision with this .wagon and thereby caused this injury, but I am submitting to you the cause of .action set- out in this complaint; that is to say, whether the furious rate of speed of this car, coupled with the attempt of plaintiff to get out of the way,” caused the accident.

We think the exception was not well founded. The plaintiff’s allegation was that he was thrown from his cart, not by the collision, but by the subsequent striking" of the wheel against the curb, and there is evidence to support a finding of the jury that such was the cause of the accident:

The defendant also excepted to the charge that if the plaintiff looked and there was no car in sight when he drove into the street, then he would not be charged with negligence in going into the street. " It was sixty-five feet from the place where, after the curve from Washington street, the track on Concord street straightens out to the nearest side of the runway up which the plaintiff drove. If the plaintiff looked toward Washington street and no car was in sight, either rounding the curve or on Concord street, he was justi-' tied in assuming that it was safe for him to drive into the street, and the exception was not well founded.

The motion to dismiss the complaint was properly denied. There was a very serious conflict of evidence as to the circumstances under which the accident occurred, but a careful examination of the evidence shows that the learned court could not have done otherwise than leave the questions of fact to the jury. To have dismissed the complaint would have been error.

The judgment must be affirmed.

Bradley and Bartlett, JJ., concurred in result.

Judgment and order unanimously affirmed, with costsi  