
    William J. McGurgan, Appellant, v. New York City Railway Company, Respondent.
    Second Department,
    October 18, 1907.
    Railroad—injury to vehicle at street crossing---negligence and contributory negligence.
    A driver of a vehicle who attempts to cross the line of a street railway when he sees a car stationary at the adjoining street comer is not guilty of contributory negligence as a matter of law. Nor is he guilty of contributory negligence in failing to keep his eye on the car the whole time of crossing as he has a right to attend to his horse and to see that other tracks are clear.
    The rule may be different where the car is under way.
    It is negligence on the part of a street railroad to start a car in broad daylight at the intersection of streets and run into a crossing vehicle without sounding any warning. ,
    Appeal by tbe -plaintiff, William J. McGrtirgan, from a judgment of tbe Municipal Court of the city of New York in favor of the defendant, entered in the office of tbe clerk of said court on the 27tli day of September, 1906.
    
      Edwin V. Quinan, for tbe appellant.
    
      William E. Weaver, for the respondent.
   Hirschberg, P. J.:

The judgment appealed from is one of nonsuit, the complaint having been dismissed at the close of tbe plaintiff’s ease.

The action is for damages for injuries alleged to have been occasioned by .the defendant’s negligence. On the 26th day of February, 1906, at eight o’clock in the morning, the plaintiff was being driven in a top buggy up Broadway, in the borough of Manhattan, The top was up, and tbe plaintiff was accompanied only by his driver. When they reached Thirty-fourth street both he and the driver observed one of the defendant’s cars standing on the- west-, bound track in, Thirty-fourth street,, at the- east crossing. The car being stationary, they proceeded to cross the tracks in Thirty-fourth street, and when they were within six feet of the west-bound tracks, flic, par was started up, without any warning, so that it. ran. intp the. plaintiff’s horse and buggy, striking the right hind wheel of the vehicle and throwing the plaintiff over the dashboard.

The negligence of the defendant is undisputed. It cahnot be pretended that to run a car into a vehicle in broad daylight at the intersection of streets, without sounding a warning or giving a signal of any kind, is the exercise of care.

I do not see how in the circumstances it can be claimed that the plaintiff was guilty of contributory negligence as matter of law. He was not bound to assume that this car would be started up at his peril. Assuming that the negligence, if any, of the driver would be imputed to him, there is nothing indicating negligence on the part of the driver. He could not be looking all the time at this car standing east of the crossing on the west-bound track. Some attention was due to the horse which - he was driving, and care was also required to see that the east-bound track was free while crossing'it.

I think the question of the plaintiff’s contributory negligence was clearly for the jury. Nor is any case cited by the learned counsel for the respondent authority to the contrary. In each of the cases relied upon the car was under way and known to the party injured to be in motion. In Lofsten v. Brooklyn Heights R. R. Co. (184 N. Y. 148) the car was approaching at the rate of -five or six miles an hour. In Furlong v. Metropolitan Street R. Co. (103 App. Div. 215) the plaintiff saw the car which struck her approaching rapidly. In Hickman v. Nassau Elec. R. R. Co. (36 App. Div. 376) the gong was sounded with great violence for a distance of more than half a block, and the plaintiff deliberately walked in front of the car. These and other cases which might. be cited are distinguishable fro'm the one at bar, and while it is difficult to find cases in which the circumstances agree, this one is in many respects similar to that of Andres v. Brooklyn Heights R. R. Co. (84 App. Div. 596), wherein we held that it was error for the trial-court to dismiss the complaint under circumstances, as I have suggested, practically similar to those now presented. /

The judgment should be reversed and a new trial ordered.

Woodward, Jenks, Rich and Miller, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, ■ costs to abide the event.  