Opinion
January, 1905.
Patrick C. Dugan, for the appellant.
James V. Coffey, for the respondent.
The right of a street car upon that part of the street upon which are its tracks has been called a paramount right. It is not an exclusive right. Those driving horses upon the street have a right to the use of the whole street subject only to the paramount right of the street car company, where the use of a particular part of the street is sought by both at the same time. If a driver were bound to avoid the center of the street, where were the tracks of the company, whenever a car was in sight it would be a serious limitation upon his right to use the street and in a city of the size of Troy where cars run frequently would well nigh exclude him from the use of that part of the street. If when driving upon the track he leaves the track when warned by a signal from the motorman of the car that the track is needed for his car we think he has done all that is necessary in recognition of the paramount right of the car to the use of that part of the street. At least it cannot be said as matter of law that his failure to leave the track when not warned constitutes such contributory negligence as would defeat his action for injuries sustained through the negligence of the motorman in running him down without warning.
The judgment should be affirmed.
All concurred, except PARKER, P.J., dissenting in opinion in which CHESTER, J., concurred.
I concur in the conclusion reached by my brethren that the defendant was plainly chargeable with negligence which caused the plaintiff's injury, and also that the facts of this case do not warrant the conclusion reached by the County Court that the defendant was liable for such injury even though the plaintiff himself was guilty of negligence which contributed to it; but I do not concur in their conclusion that the plaintiff was shown to be free from contributory negligence. It seems to me that we should hold in this instance that the plaintiff's conduct so clearly contributed to his injury that the verdict of the jury upon that question should not be allowed to stand.
In Fleckenstein v. D.D., E.B. B.R.R. Co. ( 105 N.Y. 655) the court lays down this rule: "Street railways have the lawful right to put their tracks in streets and run their cars thereon. Their cars are confined to the tracks, and cannot turn out to avoid obstacles thereon. Hence they have the right of way and persons lawfully driving upon the same tracks must not recklessly, carelessly or willfully obstruct the passage of their cars. But such persons are not absolutely bound to keep off or get off from the tracks; they must fairly and in a reasonable manner respect the paramount right of a street railway; and if they do this, and without any fault on their part they are injured by carelessness or fault chargeable to the railway, the law affords them a remedy by action for damages."
The plaintiff in the case before us did not give the slightest consideration to the passage of the defendant's car, but recklessly and so indifferently as to suggest willfulness, drove for upwards of five hundred feet through an open and entirely unobstructed street with abundant room to turn away from the rail, yet so close to it as to prevent the car passing his cart until it should slow down and wait for him to turn aside. During the whole of this distance, he was in a position to obstruct the car and risk being hurt, or to turn away about a foot and allow the car free passage and at the same time secure certain safety for himself. Such a method of unnecessarily obstructing the track when it could as easily and conveniently be left free, is not, in my judgment, a fair and reasonable manner of respecting "the paramount right of a street railway."
Nor does it indicate such reasonable care for his own safety as warrants his complaining of carelessness on the part of the motorman. I think he owed, both to himself and to the defendant, under such circumstances, greater care than merely to drive off or away from the track when warned that the car was upon him. The rule above cited indicates that he is not yet exonerated from all care of himself, and that he may not entirely rely upon the care of the motorman to protect him. In this case the circumstances seem to indicate that the motorman misjudged the distance between the car and the cart and so hit the cart in his effort to pass it. If the plaintiff had exercised a very slight amount of care on his part, the accident would not have occurred, and in my judgment it was his plain duty to have so exercised it.
I think the judgment should be reversed.
Judgment affirmed, with costs.