Fleckenstein v. Dry Dock — 1 Silv. Ct. App. 447

Majority

p. 447

Florian Fleckenstein, Respondent, v. The Dry Dock, East Broadway and Battery Railroad Company, Appellant.

Court of Appeals,

April 19, 1887.

Headnote

Negligence. Right of way.—A street railway has not the exclusive, but simply the paramount, right to the use of its tracks; and though a person, lawfully driving upon the same tracks, must not recklessly, carelessly or willfully obstruct the passage of its cars, he is not absolutely bound to keep off, or get off, from the tracks; if he fairly and in a reasonable manner respects the paramount right of the company, and, without any fault on his part, is injured by carelessness or fault chargeable to the railway, the law affords him a remedy by action for damages.

Action brought to recover damages for personal injuries alleged to have been caused by defendant’s negligence.

Appeal from a judgment of the general term of the supreme court, affirming a judgment entered on a verdict for plaintiff.

Edmund Randolph, for defendant and appellant.

Stephen B. Jacobs, for plaintiff.

The evidence of the plaintiff tended to show that, while he was engaged in trying to remove his team and wagon from the track of defendant’s road, one of its drivers carelessly drove one of its cars against him, and caused the injury of which he complains. This evidence was controverted on the part of the defendant, and hence

p. 448

there.was a question of fact for the jury, and their decision thereon is not reviewable here.

The trial judge did not err in charging the jury that the defendant did not have the exclusive right to the use of its tracks, but simply the paramount right. Street railways have the lawful right to put their, tracks in streets, and run their cars thereon. Their cars are confined to the tracks, and cannot turn out to avoid obstacles thereon. Hence they have the right of way, and persons lawfully driving upon the same tracks must not recklessly, carelessly or willfully obstruct the passage of their cars. But such persons are not absolutely bound to keep off or get off, from the tracks. They must fairly and in a reasonable manner respect the paramount right of a street railway; and if they do this, and.without any fault on their part they are injured by carelessness or fault chargeable to the railway, the law affords them a remedy by action for damages.

The judgment should be affirmed.

All concur.