Tolkon v. Otto E. Reimer Co. , 110 N.Y.S. 129 ( 1908 )

Miller, J.:

The plaintiff was obstructing the street for the purpose of vending his wares. It cannot be doubted that that was an unlawful encroachment upon the street, for it was not in any sense a legitimate street use. Section 50 of the city charter (Laws of 1901, chap. 466) provides, amoug other things, that “ the board of aider-men shall not have power to authorize the placing or continuing of any encroachment or obstruction upon any street or sidewalk, except the temporary occupation thereof during the erection or repairing of a building on a lot opposite the same.” (See, also, Cohen v. Mayor, etc., of N. Y., 113 N. Y. 532.) Although unlawfully obstructing the street, the plaintiff admits that he did not exercise the slightest care to avoid being hit by passing vehicles. His pushcart was in the roadway and he ivas standing on the side toward the center of the street, facing the sidewalk, showing his'wares to a customer, but taking no heed whatever of the traffic in the street. His unlawful occupation of the street contributed to his accident, unless the defendant’s driver willfully or wantonly ran into him. (Banks v. Highland Street Railway Co., 136 Mass. 485.) The plaintiff’s evidence discloses that as the defendant’s truck was passing the plaintiff, the hub of the rear wheel struck the handle of the pushcart. The mere fact that there were no other obstructions in the street does not prove that the act of the driver was either willful or wantonly reckless. He was properly on that side of the street, away from the street ear tracks, and even if the plaintiff had been lawfully in the street he would have had to exercise some care to avoid being hit by passing Ambicies. (Lyons v. Avis, 5 App. Div. 193.)

The complaint was properly dismissed, and the judgment should be affirmed.

Woodward and Jenks, JJ., concurred ; Gaynor, J., read for reversal, with whom Hooker, J., concurred.