Foley v. Forty-Second Street, St. N. Ave. & M. Ry. Co.

Majority

p. 958

FOLEY v. FORTY-SECOND STREET, ST. N. AVE. & M. RY. CO.

(Supreme Court, Appellate Term.

February 27, 1906.)

Headnote

Street Railroads—Collision with Vehicle—Negligence—Evidence.

In an action against a .street railroad company fob injuries caused by a collision of a car with an automobile, evidence held sufficient to justify submission to the jury of the question of defendant’s negligence.

Appeal from Municipal Court, Borough óf Manhattan, Third District.

p. 959

Action by John Foley, Jr., against the Forty-Second Street, St. Nicholas Ave. & Manhattanville Railway Company. Judgment for defendant, and plaintiff appeals.

Reversed and remanded.

Argued before SCOTT, P. J., and GIEGERICH and GREEN-BAUM, JJ.

Wilcox & Green, for appellant.

William E. Weaver, for respondent.

Plaintiff and his witnesses testify that his automobile, while running up Broadway,parallel with, nearto, butnot on,defendant’s track, was struck from behind by one of defendant’s cars, going in the same direction as the machine. On a motion to dismiss inferences most favorable to plaintiff’s case must be drawn, and it cannot be said from the facts developed that there was not evidence of defendant’s negligence in failing to observe the automobile, which was running ahead of it for some distance so near the track as to make a collision inevitable if the car attempted to pass it.

If plaintiff’s testimony be true, it was not negligence on his part to fail to look behind for approaching cars.

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