New York Condensed-Milk Co. v. Nassau Electric Railroad

Majority

p. 234

(29 Misc. Rep. 127.)

NEW YORK CONDENSED-MILK CO. v. NASSAU ELECTRIC R. CO.

(Supreme Court, Appellate Term.

October 4, 1899.)

Headnote

Street Railroads—Injury to Wagon on Track—Contributory Negligence.

A driver of a milk wagon left it on an electric railroad track while he went down a side street to deliver milk to customers. The wagon was painted white, and was without lights. The snow was piled up on either Side of the railroad track, and there had been a fall of snow during the preceding night, so that the side street was covered to a depth of 12 or 14 inches, but not so deep but that it could have been driven through, though the driver did not think it was possible. The driver knew that cars were constantly passing and to be expected, and that his wagon was not likely to be seen, because at that place the road was covered over by the structure of the elevated railway. Held, that the negligence of the driver was such as to prevent a recovery.

Appeal 'from, municipal court, borough oí Manhattan, First district.

Action by the New York Condensed-Milk Company against the Nassau Electric Railroad Company. From a judgment for plaintiff, defendant appeals.

Reversed.

Argued before FREEDMAN, P. J., and MacLEAN and LEVEN-TRITT, JJ.

John M. Ward, for appellant.

Thomas M. Rowlett, for respondent.

The defendant appeals herein to set aside a recovery for injury done by one of its cars to a milk wagon, with its contents,' left upon a railway track a little before sunrise, while the driver went down a side street to deliver milk to three customers, halfway down the block. As stated by the driver, the wagon was painted white, and without lights. The snow was piled up on either side of the railway track, and there had been a fall of snow during the preceding night, so that the side street was covered to the depth of 12 or 14 inches,—so deep that he thought he could not drive through it. The superintendent of the company admitted that, though difficult, 'it was possible to drive through the snow upon the side street, and a truckman, called as a witness by the plaintiff, testified that he had driven just before the accident through the next side street, which was in the same condition as the one upon which the customers lived. As the driver knew, cars were constantly passing and to be expected, yet he left his wagon upon the track, where it was not likely to be seen; for, although there may have been bright moonlight that- morning, the place of the collision was dark, because it was covered over by the structure of the elevated railway. This was gross carelessness, contributing to the accident, and therefore the judgment should be reversed.

Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.