Barringer v. United Traction Co. ( 1903 )

PER CURIAM.

The right of a street car upon that part of the street upon which are its tracks has been called a paramount right. It is not an exclusive right. Those-driving horses upon the street have a right to the use of the whole street, subject only to the paramount right of the street car company, where the use of a particular part of the street is sought by both at the same time. If a driver were bound to avoid the center of the street, where were the tracks of the company, whenever a car was in sight, it would be -a serious limitation upon his right to use the street, and, in a city of the size of Troy, where cars run frequently, would well-nigh exclude him from the use of that part of the street. If, when driving upon the track, he leaves the track when warned by a signal from the motorman of the car that the track is needed for his car, we think he has done all that is necessary in recognition of the paramount right of the car to the use of that part of the street. At least, it cannot be said, as matter of law, that his failure to leave the track when not warned constitutes such contributory negligence as would defeat his action for injuries sustained through the negligence of the motorman in running him down without warning. The judgment should be affirmed.

Judgment affirmed, with costs.

PARKER, P. J., and CHESTER, J., dissent.