Opinion
February, 1907.
William E. Weaver, for appellant.
Joseph H. Fargis, for respondent.
The plaintiff and a Dr. Mandel were sitting on the back seat of plaintiff's victoria, which was drawn by two horses, driven by a coachman, along 20th street towards Broadway. There was an obstruction in front of them which caused them to slow up, and when the obstruction moved away the carriage proceeded slowly to cross Broadway. The coachman waited for a southbound car to pass and then moved slowly across. A northbound car came along and struck the forepart of the carriage, causing damage to horses and carriage, for which the justice allowed plaintiff $500. It is not contended that this amount is excessive, if defendant was liable at all. The defendant's appeal is based on the claim of contributory negligence. The plaintiff's coachman testifies thus: "Q. Did you see any north bound car? A. I did not see the north bound car until the horses were about on the track, and we were ready to cross the east side of the tracks. * * * I was looking out for the traffic coming from the other way, whether there were any vehicles on the other side of the track. I did not see the car until it was right against the horse. Q. Was there anything on that track to prevent the motorman from seeing your carriage? A. No, sir. There was nothing ahead of the north bound car. Q. (on cross examination) When this car hit you it was almost the first you knew that there was a car coming from the south — just before it hit you? A. Yes, sir. That is the first I knew of it." It would seem from the testimony that plaintiff's servant drove right in front of the north bound car, without looking at all to see if any car was coming from the south, or taking any precaution whatever for his safety, or that of plaintiff and his horses and carriage, after stopping to let the south bound car go by and before driving upon the north bound tracks. He says there was nothing ahead of the north bound car and nothing to prevent the motorman from seeing his carriage. He could, therefore, presumably, have seen the car before crossing the north bound track, and avoided the accident. It seems to us that, upon his own showing, plaintiff's driver was guilty of contributory negligence. See Little v. Third Ave. R.R. Co., 83 A.D. 330; Vonelling v. Metropolitan St. R. Co., 35 Misc. 301. Plaintiff himself claims he saw the north bound car rapidly approaching from Nineteenth street at which street it made no stop. Plaintiff's carriage then stopped, as we have seen, until the south bound car had passed. It is urged by defendant's counsel in his brief that plaintiff must have known that, by this time, the north bound car was pretty close at hand, and that the south bound car might, to some extent, obstruct the view of the motorman of the north bound car, so far as plaintiff's carriage was concerned, and that plaintiff said nothing to his driver, but ran his risk of getting over before the car struck him. We are of opinion that plaintiff did not satisfactorily establish his freedom from contributory negligence.
MACLEAN and AMEND, JJ., concur.
Judgment reversed and new trial ordered with costs to appellant to abide event.