Moore v. Rochester Railway Co.

Marietta street, running east and west in the city of Rochester, enters but does not - cross St. Paul street, running north and south. At this point St. Paul street is forty feet wide from curb to curb and is occupied in part by the two tracks of the defendant’s street surface railroad. The south-bound trolley cars use the west track, or the one farthest from the point where Marietta street enters St. Paul.

On the 14th of March, 1908, at about half-past five in the afternoon the plaintiff was driving west on Marietta street with an ordinary express wagon about ten feet long drawn by one horse. As he approached St. Paul street from the east his duties required him to turn to the south on that street and in order to do so the law of the road as well as an ordinance of the city required him to cross the street so as to keep on the right-hand side thereof. As he drove out of Marietta into St. Paul street on a slow trot, looking toward the north he saw a car of the defendant coming south about two hundred feet away, as he estimated the distance. He went on and

The only question requiring discussion is presented by an exception taken by the counsel for the defendant to the refusal of the court to charge his request “that the defendant had the paramount right of way passing Marietta street at the time of the accident.” Mr. Justice Williams, writing for all the justices of the Appellate Division, held that the reason for the rule at street crossings “that the vehicle has the right to cross, and must cross the tracks,- is equally applicable to a vehicle coming' out of a street which runs to but does not cross the street, provided it is necessary to cross the tracks in order to proceed along the side the rule of the road requires.’’ The Appellate Division of the second department took the opposite view in two cases, holding that the rule governing the right of way at street crossings does not apply where “ one street bisects hut does not intersect another upon which a street surface railroad is operated.” (Hewlett v. Brooklyn Heights R. R. Co., 63 App. Div. 423 ; Rutz v. New York City Ry. Co., 107 App. Div. 568 .)

Both parties to this appeal rely upon a well-known case and each makes the ■ same quotation from the excellent opinion of Judge Earl therein, as follows: “As the cars must run upon the tracks and cannot turn out for vehicles drawn by horses, they must have the preference and such vehicles must, as they can, in a reasonable manner, keep off from the railroad tracks so as to permit the free

The rule governing the subject at street crossings differs from the rule that applies between blocks, and each rests on its own peculiar reason. Between blocks there is no traffic across the street. While people sometimes walk across and occasionally drive across from driveways leading to their dwellings, walking across is unnecessary and driving across is infrequent. Hence the law gives the street cars the paramount right of way between blocks, although it is to be exercised in a reasonable and prudent manner.

On the other hand, at street crossings traffic is necessary and continuous. Vehicles must cross the street and hence must cross the tracks, or they cannot use the highways provided for travel. This necessity takes from the cars at street crossings the paramount right they enjoy between blocks and places them on an equality with vehicles. At such points as Judge Earl announced “neither has a right superior to the other,” for the reason that “ the vehicle has the right to cross and must cross the railroad track.”

We think the same reason applies to the situation presented by the case now before us, where the side street ran to but not across the street occupied by the tracks, yet the vehicle was compelled to cross the tracks in order

In view of the opinion below, we regard further - discussion as unnecessary. The judgment appealed from should be affirmed, with costs.

Cullen, Ch. J., Gray, Haight, Werner, Hisoock and Collin, JJ., concur.

Judgment affirmed.