Bresky v. Third Avenue Railroad

On July 11, 1896, the plaintiff, who was a dealer in glass was driving a wagon containing several large eases of glass from Baxter street across the track of the defendant in Park Row, to go through Roosevelt street, which is, in effect, a continuation of Baxter street. He stopped to let a downtown car pass, and then,

The defendant excepts to the following clause of the charge: “In law, these parties were on equal terms in the street. One had the right to go along the street, and the other had the right to cross it.” The correctness of this proposition of the learned judge is abundantly sustained by authority. In Buhrens v. Railroad Co., 53 Hun, 571 , 6 N. Y. Supp. 224 , affirmed by the court of appeals ( 125 N. Y. 702 , 26 N. E. 752 ), it was held that, while street railways have certain rights of way upon the street, yet “in respect to those points where their ear tracks cross other streets there is no reason and no necessity for giving to vehicles of this description any such exclusive right. Their use of the streets at such points is of precisely the same nature and character as that of other vehicles, and their rights to the streets and the use thereof in respect to other vehicles are precisely the same as those of such other vehicles. There is no necessity for adjudging to them any right of way, as their construction and method of propulsion is in no greater respect interfered with, under such circumstances, than are those of other vehicles.” To the same effect are the cases of Zimmerman v. Railroad Co., 3 App. Div. 219 , 38 N. Y. Supp. 362 , and O’Neil v. Railroad Co., 129 N. Y. 125 , 29 N. E. 84 , in the latter of which the court said:

“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 and unobstructed passage of the cars. In no other way can street railways be operated. As to such vehicles, the railways have the paramount right to be exercised in a reasonable and prudent manner. But a railway crossing a street stands upon a different footing. The car has the right to cross and must cross the street, and the vehicle has the right to cross and must cross the railroad track.. Neither has a superior right to the other. The right of each must be exercised with due regard to the right of the other, and the right of each must be exercised in a reasonable and careful manner, so as not unreasonably to abridge or interfere with the right of the other.”

Of the cases cited by the learned counsel for the defendant, Fenton v. Railroad Co., 126 N. Y. 625 , 26 N.

The judgment and order should be affirmed, with costs. All concur.