Lehman v. New York City Railway Co. , 107 N.Y.S. 561 ( 1907 )

PER CURIAM.

Action for damage to plaintiff’s automobile through defendant’s negligence. The plaintiff was proceeding south on Madison avenue and crossed 125th street to the south side, where he turned on the south-bound track, and ran along for a short distance in order to avoid a truck standing in the street. Just as he was leaving the south-bound track, and turning again off the track to the pavement, he was struck in the rear by the car of the defendant, which had been standing still on the north side of 125th street. The complaint was dismissed. Under the decision of Bang v. N. Y. Q. C. Ry. Co., 113 App. Div. 673, 99 N. Y. Supp. 946, and Central Brewing Co., 49 Misc. Rep. 523, 97 N. Y. Supp. 1025, it was error to dismiss the complaint. The defendant should have been put on its defense.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.