Opinion
April Term, 1901.
Gormly J. Sproull, for the appellant.
Charles F. Brown, for the respondent.
The plaintiff was not the driver of the wagon and we find nothing in this evidence that he did, or which he omitted to do, which made him responsible for the accident. If we assume, without deciding, that there was some negligence on the part of the driver of the wagon, this would not preclude the plaintiff, for the driver's negligence is not to be imputed or attributed to the plaintiff. Nor do we understand that the defendant contends that the plaintiff was guilty of negligence as matter of law. Had he assumed to take the reins, or had he jumped from the wagon and been injured, it might be urged that he was himself to blame for the injuries received. We have, therefore, to consider the single question of the defendant's negligence, and in this connection determine whether the driver of the wagon or the motorman of the car was responsible for the accident.
It appears that when the driver undertook to cross the tracks, the up-town car was at least three-quarters of a block away, and that it continued to proceed to Forty-eighth street without diminishing its speed. While it was going that distance, the driver of the wagon had, in attempting to cross, reached such a point that the horse's feet were at the easterly track and the horse's head over that track, where he stopped his horse and wagon, waiting for the passage of the south-bound car. After that had passed, he proceeded to cross and had almost reached a point of safety, as shown by the fact that the car came in contact only with the hind wheel. The inference that can be drawn from the testimony is that, during this interval of time, the motorman had not taken the slightest care to slacken the speed of the car and thus avoid colliding with the wagon. That the car was proceeding at a rapid pace is confirmed by the fact that, although it struck only the rim of the hind wheel, the impact was so great as to completely overthrow the wagon.
What no doubt affected the learned trial judge was that when the driver of the wagon started to cross, after he had stopped to permit the south-bound car to pass, the car at that moment was but from fifteen to twenty feet away. He overlooked the fact, however, that at that moment the driver of the wagon was in a position of danger and one which the motorman on the car, had he been looking, must necessarily have seen, because had the driver remained where he was and had the car attempted to pass, it would have struck the horse. It is, therefore, only by assuming that it was his duty to back the wagon from the track that the driver could have been held to have been negligent, and that such negligence alone caused the accident. Considering the right which he had to cross the street, he was not obliged to wait at the track an unnecessary length of time nor, in proceeding in full view of the car, was he entirely blamable for assuming that the motorman, seeing his peril, would not proceed without doing something to avert the collision. He had the right to assume that the motorman having seen him on the track in a dangerous position would give him a chance to cross. He had waited for one car to pass, stopping his horse in plain sight of the other car and directly in its path. He then started ahead, evidently relying upon the motorman's exercising some care in approaching him; and, when he saw that the car was very near at hand, he whipped up his horse and almost succeeded in getting over the tracks without mishap. In spite of the position of the horse and wagon for some moments prior to the accident, however, the car came on without signal and at undiminished speed.
Upon the ground, therefore, that the plaintiff made out a case entitling him to have the question of the defendant's negligence submitted to the jury, it was error to dismiss the complaint, and the judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.
VAN BRUNT, P.J., RUMSEY, INGRAHAM and HATCH, JJ., concurred.
Judgment reversed and new trial ordered, with costs to appellant to abide event.