Cohen v. Metropolitan Street Railway Co.

ers lawfully using the public thoroughfare; and I apprehend that the true rule is that a driver of a wagon in a city street may drive along the track in full view of an approaching car, and that the fact that he so proceeds for 400 feet or any other distance will not charge him with contributory negligence, if, under all the circumstances, his conduct is consistent with ordinary prudence. The only limitation of the driver’s right is that he must not unnecessarily interfere with the passage of the car, which, although entitled to a preference, does not possess the exclusive right to the use of the tracks. It cannot be held, in the situation disclosed by the record, that it was negligence per se for the driver to fail to look behind for an approaching car. This accident occurred in a populous city street in the daytime. The plaintiffs’ horse and wagon were lawfully upon the street. The wagon was covered on the sides and rear. It was very difficult for the driver to look to the rear. He had just reached the intersecting street, into which he was turning from the track. At .the time of the collision the horse and the greater part of the wagon were off the track. While turning out of the track the driver was required to exercise reasonable care, and he had a right to assume that those in charge of the defendant’s car would employ the like degree of care to avoid injuring him. As both were approaching a street crossing, the motorman, if he was looking ahead, as he was especially required to do at such a time, could not fail to note the presence of the wagon, while the driver of the wagon at the same time was required to be Vigilant in observing the crosswalk, where he should anticipate the presence of pedestrians. Under these conditions it was peculiarly a question of fact as to whether reasonable care required the driver to look towards the rear or do anything else before he proceeded to turn out of the track. The dismissal of the complaint was therefore erroneous, and requires a reversal of the judgment. The cases cited are easily distinguishable. In Johnson v. Railway Co., 34 App. Div. 271 , 54 N. Y. Supp. 547 , an exceptional situation was presented, entirely different from the facts in the case before us. There the collision occurred on a dark night in a rural district, at a point where the plaintiff could not expect that his presence would be anticipated or discovered by defendant’s employés; and all that was there decided was that the danger was known and obvious, and consequently subjected the plaintiff to the imputation of contributory negligence. The same court quite recently decided that “the rule in that case should not be extended to protect corporations operating street railroads in disregarding the rights of others in the highway.” Seifter v. Railway Co. (Sup.) 66 N. Y. Supp. 1107 . In Adolph v. Railway Co., 76 N. Y. 530 , three of the justices concurred in the result only, and the doctrine of that case has been materially modified by subsequent decisions of the court that pronounced it. Fleckenstein v. Railway Co., 105 N. Y. 655 , 11 N. E. 951 ; Fishback v. Railway Co., 11 App. Div. 152 , 42 N. Y. Supp. 883 ; Devine v. Railway Co., 34 App. Div. 248 , 54 N. Y. Supp. 626 ; Bernhard v. Railway Co., 68 Hun, 371 , 22 N. Y. Supp. 821 . The conclusion in Hill v. Railway Co., 30 Misc. Rep. 440 , 62 N. Y. Supp. 596 , was based entirely upon the authority of Adolph v. Railway Co., supra; and the later decisions limiting the doctrine of that

case do not seem to have been called to the attention of the learned justice writing the opinion in the case cited.

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