Sosofsky v. Metropolitan Street Railway Co.

The plaintiff’s ice wagon was compelled, in consequence of obstructions in the street, to go upon the defendant’s track. A car coming up behind, the driver whistled, and plaintiff’s driver immediately started to drive off the track, so as to allow the car to pass. Before the wagon had gone clear the car collided with it and caused the accident. This was all in plain daylight. It was attempted to be shown that there was a scale bar projecting six or seven inches behind the ice wagon, and that it was this that the car caught. The driver testified that he saw it plainly. While it may have been contrary to the ordinances to have the scale where it was, such violation did not justify the driver’s negligence in catching it. The justice submitted the case to the jury in a charge which was even more favorable to defendant than it had a right to ask. Judgment affirmed, with costs.