Opinion
April, 1905.
Present — Bartlett, Jenks, Hooker, Rich and Miller, JJ.
Judgment and order unanimously affirmed, with costs.
This is a negligence suit, arising out of a collision between one of the defendant's electric cars and a baker's wagon driven by the plaintiff on Main street in the city of Poughkeepsie. On the first trial the plaintiff recovered a judgment, which was reversed on account of the refusal of the trial judge to charge one of the defendant's requests. ( Northrop v. Poughkeepsie City Wappingers Falls Electric R. Co., 74 App. Div. 625.) On the second trial, which now comes up for review, the jury rendered a verdict in favor of the defendant. The first proposition argued in behalf of the appellant, that the verdict was contrary to the evidence, is not sustained by the record. There was a clear conflict of evidence as to the circumstances under which the collision occurred, and it would have been error to refuse to submit the issues to the jury. According to the plaintiff's account of the collision, there was no car in sight when he turned his horse to cross the track, or, at all events, the car was at such a distance that he might assume that he could cross in safety, whereas, according to the witnesses for the defendant, the plaintiff did not turn to cross until the car was within twenty feet of his wagon, when it was too late for the motorman, by the exercise of any degree of care, to avoid the collision. The only other question presented by the appeal relates to the admission of the testimony of several witnesses to the effect that when seated in a car at the place where the accident occurred they could see a further distance westward along Main street than the plaintiff testified it was possible for him to see when he attempted to cross the defendant's railway track. It is objected that this testimony was inadmissible because the conditions under which the witnesses made their observations were not shown to be the same as those which affected the plaintiff at the time of the accident. The conditions, however, for obtaining a distant view appear to have been less favorable to the witnesses than they were to the plaintiff, and under these circumstances the testimony was properly received. Furthermore, it tended directly to contradict the statement of the plaintiff that there was a curve in the track which obstructed the view, and it was clearly relevant for that purpose. The judgment and order appealed from should be affirmed.