Witezl v. Third Avenue Railroad — 52 N.Y. St. Rep. 521

Majority

p. 521

Conrad Witezl, Resp't, v. The Third Avenue Railroad Co., App'lt.

(City Court of New York, General Term,

Filed May 9, 1893.)

Headnote

Negligence—Street railroads.

Plaintiff, who was driving a heavy truck, after looking both ways for a car, and seeing none, started to cross the avenue. After crossing one track and when his horses were on the other lie saw a car sixty feet away, to which he signalled, but the driver of the car did not or would not see-him, and the car struck the hick of the truck throwing plaintiff out and injuring him. Held, that the questions of negligence were for the jury and that a verdict for plaintiff was sustained by the evidence.

Appeal from judgment in favor of plaintiff entered on verdict.

Iioadly, Lauterbach & Johnson, for app’lt; Forster, Hotaling & Klenke, for resp’t.

The plaintiff, at the time he was injured, was the driver of a beer wagon. The team of horses were fairly heavy horses, weighing about 1,300 pounds each. The wagon and its contents weighed over two tons. Therefore, it is a self-evident fact that, because of their own weight and the weight of the wagon and contents, the horses were not capable of good speed.

The plaintiff was serving a customer on the westerly side of Third avenue and Seventy-eighth street. After doing so, he drove across Third avenue, having previously looked up and down for a car and saw none.

He crossed safely the south bound track and his horses had crossed to the north bound track, and were upon the same, when upon looking southward he saw a car coming up and distant about sixty or eighty feet away.

He signalled to its driver, who apparently would not or did not see him, whipped up his horses and had crossed said northbound track except the extreme rear part of his wagon, when his rear wheels were struck by the car, he was thrown out and severely injured.

The jury rendered a verdict in his favor for $500.

The testimony shows that plaintiff’s horses were actually upon the north bound track when defendant’s car was sixty or eighty feet away to the southward.

The plaintiff was not bound to wait until defendant’s car passed

p. 522

him; if, as a prudent, careful driver, lie deemed it safe to cross the track in question, he had a right to do so.

The car companies have not exclusive right to the public highways along which their tracks run.

They are, through their drivers, required to exercise ordinary care and diligence in the management of their cars.

The question whether or not the plaintiff exercised his right to cross defendant’s tracks in a careful or careless manner was a question for the jury to determine.

They evidently believed that he was not careless, and the testimony is more than sufficient to justify that finding.

Concerning defendant’s negligence, that is also clearly established, for the testimony shows that the plaintiff’s horses were actually upon the north track when defendant’s car was quite a long distance away.

He, under such circumstances, had a right to go ahead, and it became defendant's duty to stop its car until plaintiff had passed over its said tracks.

Its failure to stop its car was negligence, unless it was impossible to do so. The question whether or not defendant was negligent was also submitted to the jury, who determined it affirmatively, and that conclusion is also justified by the evidence herein.

The judgment rendered was certainly a reasonable one in amount.

Finding no error, judgment is affirmed, with costs.

Newburger, J.—I concur in the result.