Opinion
May, 1913.
Judgment reversed and new trial granted, costs to abide the event. There was evidence from which the jury could find that defendant's car was permitted to approach a street crossing at a high rate of speed, without giving any warning, and that the car was not under control of the motorman. Plaintiff was not the driver of the piano van with which the car came into collision, but was employed as a helper thereon. There was evidence that just before the van reached the intersecting streets, plaintiff saw the driver look up and down the street which he was about to cross, and then proceed, and that plaintiff, after looking and seeing no car approaching, went to the rear of the van, the sides of which were inclosed, to hold a piano while the van was crossing the car tracks. It was a question of fact for the jury whether under such circumstances plaintiff was guilty of contributory negligence in failing to observe the approaching car and warn the driver. Jenks, P.J., Carr, Rich and Putnam, JJ., concurred.