
    (4 Misc. Rep. 286.)
    WITTE v. BROOKLYN CITY R. CO
    (City Court of Brooklyn,
    General Term.
    June 26, 1893.)
    Street Railroads—Injury to Persons on Track.
    Where a wagon which had been going along a street-railroad track is struck while turning out to allow a car approaching from the rear to pass, there is sufficient evidence of negligence on the part of the person operating the car to justify the submission of the question to the jury.
    Appeal from trial term.
    Action by August Witte against the Brooklyn City Railroad Company to recover damages for personal injuries. From "a judgment in favor of plaintiff and from an order denying a motion for a new trial, defendant appeals.
    Affirmed.
    Argued before CLEMENT, O. J., and OSBORNE, J.
    Morris & Whitehouse, for appellant.
    Jas. & T. H. Troy, for respondent.
   CLEMENT, C. 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, when 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 car 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. Railroad Co., (City Ct. Brook.) 12 N. Y. Supp. 223; affirmed, court of appeals, without opinion, 134 N. Y. 611, 31 N. E. Rep. 629.

Judgment and order denying new trial affirmed, without costs.  