Opinion
November, 1906.
William E. Weaver, for appellant.
John Newton Johnson, for respondent.
Action for damages to plaintiff's horse and wagon, caused by collision with defendant's car. Case tried before the justice and a jury. There are no exceptions to charge. Jury found for plaintiff. Defendant appeals. The plaintiff's evidence, which the jury were at liberty to believe, shows that the driver of plaintiff's wagon was proceeding south on the westerly side of Sixth avenue. At the intersection of Thirty-first street and Sixth avenue, he turned to the east to cross the avenue. At the time of turning he looked and saw defendant's car going south, along the westerly track on Sixth avenue. The said car was then at Thirty-second street, a block distant from the point where the accident occurred. The plaintiff's horse was going on a fast walk or slow trot. The car came along and struck the rear wheel of plaintiff's wagon, causing the injuries of which plaintiff complains. There is sufficient evidence to show defendant's negligence, for, if the motorman had had his car under control at this crossing, he could have stopped it in time to avoid striking plaintiff's wagon, which he must have seen in time, since the horse and most of the wagon had crossed the track at the time of the accident, while, as we have seen, the horse was going at a fast walk or slow trot. The driver, however, did not look a second time after he had turned to cross. Appellant claims that this fact constitutes contributory negligence. It will be remembered that, at the time of turning to cross, he saw the car a block away. This was sufficient distance to warrant an ordinarily cautious person in believing that it was safe to attempt to cross, relying upon the assumption that the defendant's motorman would respect the driver's right of passage at this crossing and exercise proper care in the management of the car to prevent a collision. There were no additional or peculiar circumstances that called for an exercise of greater vigilance; and it cannot be said to have been contributory negligence, as a matter of law, for the driver to neglect to look a second time after turning to cross. This was the view taken by the learned trial justice, as shown in his very well-considered opinion denying defendant's motion for a new trial, citing the cases of Beers v. Metropolitan St. R. Co., 104 A.D. 99; Hergert v. Union R. Co., 25 id. 218; Kennedy v. Third Ave. R.R. Co., 31 id. 32; Schoener v. Metropolitan St. R. Co., 72 id. 23, in support of his conclusion, with which we concur. The question of plaintiff's alleged contributory negligence, as well as that of defendant's negligence, was one for the jury, and there is sufficient evidence to sustain their finding in favor of plaintiff.
The judgment must be affirmed, with costs.
DOWLING, J., concurs; DUGRO, J., taking no part.
Judgment affirmed, with costs.