Stines v. Metropolitan Street Railway Co.

Bischoff, P. J.

We are asked to reverse this judgment upon the ground that the issue, as to the defendant’s negligence and the plaintiff’s driver’s freedom from contributory negligence, was determined by the jury contrary to the weight of the evidence.

The action was for damages sustained through a collision between the defendant’s car and the plaintiff’s van at Lexington avenne and One Hundred and Sixth street. According to the testimony of the driver of the van, corroborated by his companion, he approached Lexington avenue from the west, stopped for the passing of a car on the west track, and, observing the car in question at a standstill on the east track, some forty feet away, he proceeded to cross, but when his horses were upon the east track the car was started by the motorman, who was looking towards the rear, and the collision occurred, despite the driver’s endeavors to escape. It appears from the evidence that the driver’s view was not obscured at all by the car which had passed-him, and to hold that the contrary was the fact, as claimed by the appellant, would involve a disregard of the direct proof.

No evidence was given for the defendant, but two other witnesses, called for the plaintiff, testified that the car had started from a point just above 'One Hundred and Fifth street, some 170 feet from the place of crossing, and did not stop again, but if the jury were bound to take this as the fact, there still remains the driver’s clear statement that when his horses were crossing the tracks the car was at a standstill, and his mistake in the distance would not amount to a misstatement of that fact.

The car struck the rear of the wagon, and it is quite conceivable that it had proceeded for a hundred feet and more while the wagon was crossing the track, or, on the other hand, the jury might have inferred that the car was going very slowly when the plaintiff thought it was at rest. In either aspect the driver’s attempt to cross was by no means an unreasonable or rash act, and the collision could readily be deemed to have occurred through the sole negligence of the defendant’s motor-man in starting the car, or in materially increasing its speed, without looking for what was before him.

We conclude that the verdict was amply supported by the evidence, and that the judgment should be affirmed, with costs.

Leventbitt and Clabke, JJ., concur.

Judgment affirmed, with costs.