
    Anthony Saffer, Respondent, v. The Westchester Electric Railway Co., Appellant.
    (City Court of New York, General Term,
    February, 1898.)
    Negligence — Collision on an electric-car track— Negligence of motorman.
    Proof, made in an action based upon negligence, tending to show that an electric car of the defendant was 800 feet distant when the plaintiff’s truck became fixed in a hole in the bed of the defendant’straek and that, although the plaintiff yelled repeatedly to the motorman to stop his car, he ran into the truck upon a clear night, and when an electric light was within fifty feet of the place of the accident, sufficiently indicates that the defendant was guilty of negligence.
    Appeal by the defendant fróm a judgment entered upon the. verdict of a jury, and from'an order denying its motion for a new trial, made on the judge’s minutes.
    Hoadly, Lauterbach & Johnson, for appellant.
    Welch & Daniels, for respondent.
   Schuchman, J.

This action was brought to recover damages-alleged to have been sustained by the plaintiff through the defendant’s negligence in running a trolley car into a horse and truck that, plaintiff owned and was driving.

The plaintiff in presenting his side of the case proved: That' on December 19, 1895, at about 6:30 o’clock, p. m., he drove his-horse and truck loaded with marble northwardly along a road, called Boston or Bear Swamp road, on the right side of which defendant operated a trolley line of cars.

Plaintiff found the road very soft and loamy so that the horse could not pull through; he, therefore, drove on to the hard trolley roadbed; he got stuck on that in a hole and seeing a trolley car coming towards him, southwardly, he was endeavoring to turn and get off the track, but being stuck he could not succeed. He then yelled to the motorman,' in charge of the car, repeatedly, a dozen times, “ stop the car.”

The car was about 300 feet away when the plaintiff first saw it; it was run at the rate of twelve to twenty miles an hour. It was a clear night, not fqggy and an electric street light was within fifty feet of the accident. " The motorman made no- attempt to stop the car until it struck plaintiff’s horse and truck, injuring the horse so much that it had to he killed, overthrowing the truck, and throwing the plaintiff off the wagon, so that he became unconscious and had to keep in bed for four weeks, in order to heal his bruises and the injuries occasioned.

This evidence is sufficient to charge the defendant’s motorman with want of exercise of care and caution of an ordinarily prudent man, in running the car against plaintiff’s horse and wagon under the circumstances in this case. The evidence fully absolves plaintiff of .contributory negligence.

To be sure, all the evidence presented on plaintiff’s behalf is contradicted by the defendant’s side of the case; but that conflict •is settled by the jury rendering a verdict for the plaintiff in the sum of $500. .. .

The plaintiff proved the value of the horse at $250, the truck, at $100, the harness, at $50, the medical services and medicines, ■at $119, and the loss of his services at $25 a week, or, for the four weeks during which he was laid up, $100, making a total of $619; a sum in excess of the $500 verdict rendered. Eor that reason, the evidence, admitted by the trial judge and complained of in the appellant’s fourth point,' to the effect that for about nine months after the accident occurred plaintiff was' unable to work,” etc,, did not act injuriously upon the minds of the jury in fixing the amount of their verdict to defendant’s prejudice.

The loss of time and services occasioned to plaintiff by the injury was properly pleaded. Section 3 of bill of particulars and complaint. -

.None of the various exceptions present reversible error, and, therefore, the judgment and order appealed from are affirmed, - with costs.

O’Dwyer, J., concurs.

Judgment and order affirmed, .with costs. ■ . - > '  