
    Nicholas Delaney, Appellant, v. Yonkers Railroad Company, Respondent.
    
      Negligence a motorman running into a stage on the tracks plainly visible to him — contributory negligence.
    
    A highway was being repaired by a contractor, and for a distance of 400 feet was impassable, except where the tracks of an electric railway had been laid. The driver of a.stage, who was driving upon the railroad tracks at this place, seeing an electric car, some 600 or 800 feet away, approaching him at great speed, stopped his team, and, when the car was 25 feet away, stood up and shouted ■ ' to the motorman, but the car continued on its way and collided with the horses and stage.
    In an action brought to recover the damages thus sustained,.
    
      Held,, that it was error for the trial judge to dismiss the complaint on the ground that the driver was guilty of contributory negligence “in not ascertaining whether he could pass over that 400 feet before a car could come along which , had a right to pass over, independent of him.”
    Appeal by the plaintiff, Nicholas Delaney, from a judgment of-the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 21st day of May, 1896, upon the dismissal of his complaint directed by the court at the close of the plaintiff’s evidence after a trial at a Trial Term of the Supreme Court held in and for the county of Westchester.
    
      Allen Taylor, for the appellant.
    
      John F. Brennan, for the respondent.
   Willard Bartlett, J.:

This is an action of negligence in which the plaintiff was non-suited. It grows out of a collision which occurred on the 2d day of September, 1892, on the highway known as Yonkers avenue, connecting the cities of Yonkers and Mount Vernon, between an electric trolley car belonging to the defendant and a two-horse truck belonging to the plaintiff, which was "employed at the time as a stage for the conveyance of passengers. A contractor was engaged in repairing Yonkers avenue, in sections of 400 feet at a time, so that any particular section which he was at work upon was rendered impassable for teams except along the track of the defendant’s railroad. The defendant’s car was bound east, toward Mount Vernon, and the plaintiffs stage was bound west, toward Yonkers, According to the testimony' of the driver of the stage, after he had ■ entered upon the section of the avenue then undergoing repair, and upon which; in the existing condition of things, there was no driveway except upon the railroad track, he perceived one of the defendant’s cars coining toward him with great rapidity at a distance of from 600 to 800 feet. He stopped his team at once, but the car continued on its way, colliding with the horses and the vehicle to which they were attached, with sufficient violence to throw down and injure the animals considerably, destroy the harness and damage the stage itself to some extent. Just before the collision, and when the car was about twenty-five feet away, the driver of the stage stood up in his place and motioned and shouted in vain to the motorman to stop. He accounted for waiting to do this until the car was so near, by saying, in substance, that up to that time he expected the car to stop before striking his stage, an expectation that was by no means unnatural, since his situation, according to the evidence, ought to have been observable by the motorman when the car was several hundred feet away. •

' The learned trial judge dismissed the complaint on the ground that the plaintiff’s driver was guilty of contributory negligence “ in not ascertaining whether he could pass over that 400 feet before a car would come along which had a right to pass over independent of bind” In so doing the court assumed, as matter of law, that if there was an approaching car in sight, no matter how far off, it was the duty of the driver of the stage to keep off the blockaded section of the avenue till the car had come over it. We are of the opinion that this view was erroneous. The driver testified that the collision occurred at about the middle of the blockaded section, and that he saw the car 600 or 800 feet ahead. These statements authorize the inference that the stage was upon the portion of the road which was undergoing repair before the. driver saw the car at all, and that the motorman would have perceived the presence of the stage there if he had exercised reasonable care to keep a good lookout, and could readily have avoided running down the plaintiffs team. It is not necessary for the purposes of this appeal to determine what would have been the respective obligations of the plaintiff’s, driver and the defendant’s motor man in regard to the right of way, if they had met without any collision in the middle of the blockaded section'of Yonkers avenue. It is enough to-say that the proof in this- record indicates not only that the collision might have been avoided by the exercise of reasonable care on the -part of the motorman, but that the driver was blameless in the matter, and,, hence, that the case should not have been taken away from the jury.. A different view of' the facts may be required when the evidence in. behalf of the defendant is put in, but as the case was presented at. the Trial Term, the complaint ought not to have been dismissed.

The judgment should be reversed and a now trial granted, with, costs to abide the event.

All concurred.

Judgment reversed and new trial granted, costs to- abide the> event. ■  