Lefkowitz v. Metropolitan Street Railway Co. , 56 N.Y.S. 215 ( 1899 )

Freedman, P. J.

This action was brought to recover damages for the destruction of personal property, occasioned by the alleged negligence of the defendant in permitting one of its cars to run into and overturn the plaintiff’s wagon loaded with mineral water, boxes and bottles, in May, 1898.

The driver of the plaintiff’s wagon attempted to cross the tracks of the defendant near Third street, in Rew York city, and while passing in front of a moving car, the wagon was struck and overturned, and, with its contents, destroyed.

The testimony of the plaintiff’s witnesses as to the facte and circumstances attending the occurrence does not conclusively establish the alleged negligence of the defendant, while the testimony of the motorman in charge of the car at the time of the accident, together with that of three other apparently disinterested witnesses, regarding the transaction, is very positive and wholly uncontradicted, and is to the effect that, while the wagon of plaintiff, which just previous to the injury, had been proceeding northerly along the street in the same direction as the car, and apparently with the intention of continuing the same course, the driver of the wagon suddenly turned sharply to the west in an evident attempt to cross in front of the car, and that, at the time he so turned, the wagon was so near the car that the utmost endeavor of the motorman could not stop the car, and a collision was the inevitable consequence. The close proximity of the car to the wagon at the time the driver turned to cross the street, makes it very apparent that the plaintiff was not free from contributory negligence, and the preponderance of testimony is that there was no negligence on the part of the defendant.

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

MacLean, J., concurs; Leventritt, J., taking no part.

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