Opinion
April, 1919.
Present — Jenks, P.J., Mills, Putnam, Blackmar and Kelly, JJ.
The allegations of the complaint, admitted by the answer, are to the effect that the defendant was a street railway company operating its railroad along the public highway known as City Island road. That being so, the court was right in charging the jury that the motorman was under an obligation to use care to discover whether any vehicle or person was upon the track. The plaintiff was neither a trespasser nor a licensee, but has a right on the track subject to the paramount but not exclusive right of the defendant company. This charge is reasonably within the allegations of the complaint, liberally construed; and the testimony as to the distance from the curve to the place where the automobile was stalled upon the track, together with the motorman's statement that the did not see the automobile until he was within fifteen feet of it, furnishes a foundation for the finding by the jury that the defendant was negligent. The question of contributory negligence was plainly a question of fact. Judgment and order unanimously affirmed, with costs.