
    Thomas P. Pritchard, Appellant, v. The Brooklyn Heights Railroad Company, Respondent.
    
      Negligence — a Horse and wagon, turning from one track to another to escape a car from, behind, struck by a car-approaching on the latter track —when the case should go to the jury.
    
    In an action brought to recover damages resulting from a collision between the ' plaintiff's horse and wagon and one of the defendant’s street cars, it appeared that the defendant maintained a double-track street railway on Washington avenue in the borough of Brooklyn. The plaintiff testified that, while he was driving south along the avenue on the defendant’s right-hand track, the motorman of a car approaching him from the rear on the right-hand track notified him to get out of the way by sounding the bell; that being prevented from passing to the right of the track by a wagon standing in the street, he turned his horse toward the defendant’s left-hand track; that as he did so he discovered one of the defendant’s cars approaching him on the left-hand track at a fair rate of speed; that he tried to turn his horse back out of the way of the approaching car, but that the horse was struck by the car; that he saw the car in question when it was half a block away and that the collision occurred at about the center of a street intersection.
    
      
      Held, that it was error for the court to dismiss the plaintiff's complaint; That it could not he said-, as matter of law, that the defendant was free from negligence or that the plaintiS was guilty of contributory negligence.
    Appeal by -the plaintiff, Thomas P. Pritchard, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 24th day of February, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial’ Term.
    
      Grant G. Fox, for the appellant.
    
      I. R. Oeland, for the respondent.
   Woodward, J.:

This is the ordinary action for damages resulting from a collision between the plaintiff’s horse and wagon and a car of the defendant. The learned court granted a motion for a nonsuit, and mpon this-appeal the plaintiff is entitled to the most favorable inferences deducible from the evidence, and all disputed facts are to be treated as established in his favor. (Place v. N. Y. C. & H. R. R. R. Co., 167 N. Y. 345, 347, and authorities there cited.) The plaintiff testified that he was driving south along the car tracks in Washington avenue; that he was' on the right-hand track, and that a car was coming up behind him, pounding the bell for him to get out of the Way; that just at that point there was a wagon standing on thé right-hand side of the track, so that he could not get off in that direction that he then turned his horse in the direction of the defendant’s left-hand track, and that as he did so he discovered one of the defendant’s cars coming in the opposite direction at a fair rate of speed j. which struck him ; that he tried to turn his horse back out of the way of the approaching car, but that he was unable to do so; that he saw the car which hit his horse when it was half a block away, and that the accident occurred at about the center of the point, where Washington avenué, Grand avenue and Park place intersect in the borough of Brooklyn. This version of the accident seems to-be supported by the plaintiff’s witnesses generally, and the learned court below nonsuited the plaintiff.

We are clearly of the opinion that this case should have been submitted to the jury. The inferences to be drawn from the facts were not so clearly against the theory of the defendant’s negligence, or the lack of contributory negligence on the part of the plaintiff, that it could be said as a matter of law that there was no negligence on the part of the defendant, or that the plaintiff was guilty of contributory negligence. If the plaintiff could see the defendant’s car half a block away, no reason is suggested why the defendant’s motorman might not have seen the plaintiff’s horse and wagon an equal distance, as well as have discovered his predicament. It was clearly the duty of the plaintiff, on the approach of the car from the rear*, to get out of the way if he could ; he was being urged by the clanging of the bell to make room for the car, and the obstructed highway at the right-hand side made it impossible for him to turn in that direction. If, under the circumstances, he turned in the opposite direction with the car of the defendant half a block away, and approaching a point where three streets intersect, it can hardly be said, as a matter of law, that he failed to use the degree of care which a reasonably prudent man, under the same circumstances, would or should have used. The plaintiff, upon his theory of the case, was in a pocket; he was being urged from the rear, and the fact that he. may not have used the highest degree of prudence under such circumstances is not strange. He appears to have used his best endeavors to get out of the way of the car in the rear, and in doing so got into the path of the approaching car, the mo tor man of which, so far as appears, was in a position, if he used his eyes, to see and appreciate the plaintiff’s position. If this was true, the duty devolved upon the defendant to stop its car and give the plaintiff an opportunity to get out of his position. While it may be that the defendant had a paramount right to the tracks, as related to the plaintiff, a paramount right is not a license to run cars in disregard of the rights of those who are lawfully using the highways, and who are making an effort to discharge their duty by getting out of the way of approaching cars. It is probably true that the plaintiff had a right, under the circumstances. described, to keep on the tracks of the defendant in front of the car until he had reached a point where he could turn out in safety, but the mere fact that he did not do so, but undertook, under the urgent demand of the defendant’s motorman in the rear, to clear the track, is not, as a matter of law, negligence on his part. There were different inferences which might be légitimately drawn from the conceded facts, and these were for the jury rather than the court to decide.

The judgment appealed from should be reversed, with costs, and a new trial granted.

Bartlett, Hirschberg, Jenks and Hooker, JJ., concurred.. Judgment reversed and new trial granted, costs to abide the event.  