Witte v. Brooklyn City Railroad — 53 N.Y. St. Rep. 334

Majority

p. 334

August Witte, Resp’t, v. The Brooklyn City Railroad Co. App’lt.

(City Court of Brooklyn, General Term,

Filed June 26, 1893.)

Headnote

Negligence—Use op street car tracks.

While plaintiff,who had been driving on the car tracks, was trying to turn off, an electric car struck the hind wheels of his wagon and overturned it. Feld, that it was plaintiff’s duty to turn off seasonably to avoid the car, and while doing so the motur-man was bound, to exercise proper care to-avoid a collision, and that the questions of negligence on the part of each, were for the jury to determine.

Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.

Jas. & T. H. Troy, for resp’t; Morris & Whitehouse, for' app’lt.

The counsel for the seeks a reversal in this case only on two grounds, first, that the evidence showed contributory negligence on the part of plaintiff; second, that there was no proof of negligence of the defendant. The plaintiff drove a beer wagon in a southerly direction along the track of defendant, on Third avenue in this city, until he reached Thirty-second street, where he swung his wagon to the east, in order to get out of the track, and then turned to the west. The wagon was nearly off the track when an electric car struck the hind wheel and. overturned it.

This case was properly submitted to the jury. It was the duty of plaintiff to turn off seasonably to avoid the car approaching from the rear, and, while so doing, the motor-man was bound to exercise proper care to avoid a collision with the-wagon. Whether the plaintiff was guilty of contributory negligence, and wlimher the motor-man was negligent, were questions of fact for the jury. Quinn v. The Atlantic Avenue R. R. Co., 34 St. Rep., 801 ; affirmed court of appeals, without opinion, 134 N. Y., 611 ; 45 St. Rep., 935 .

Judgment and order denying new trial affirmed, without costs. Osborne, J., concurs._