Citations
- 40 A.D. 238
Full opinion text
Hatch, J.:
The plaintiff was employed as the driver of a grocery wagon at Port Richmond, Staten Island. On the 22d day of February, 1897, while in such employ, he drove the wagon for the purpose of the delivery of groceries to a customer living upon Richmond terrace. To reach such point he drove along. Richmond terrace in the car-tracks of the defendant’s railroad, which are situated upon said street, for the distance of about a mile. When he came to within about 100 feet of his destination he looked behind, but could discover no approaching car, and he testifies that no car was then in sight. It was about eight o’clock in the evening, somewhat dark and misty, but the evidence tended to establish that he could see the headlight of a car for a distance of about 300 feet. The street at this point, from the curb to the first rail of .the track, was six feet and six inches. The ■ wagon which the plaintiff was driving was four feet and eight inches in width, and the axle was ten inches longer, while the hub projected beyond the axle, but the distance is not given. The evidence also established that there was some overhang to the •car, but the extent of such overhang is not stated. The plaintiff •drove to a point opposite where he was to deliver the groceries, turned from the track upon which he had been driving, hung up his lines on a hook in the wagon used for that purpose and stooped down to pick up the packages he was to deliver, when the car, approaching upon defendant’s track from the rear, struck the wagon, threw the plaintiff out and inflicted the injuries of which complaint-is made.
The plaintiff states that when he drove in front of the premises he supposed that'he was clear of the track, but did not look to see; and that he felt perfectly safe in the place he then occupied. The motorman of the car testified that the hind wheel of the wagon was •over the track for a distance of about three inches. The main contention upon the part of the defendant is that the plaintiff was guilty of contributory negligence in failing to look back and observe the approach of the ear, and also in failing to make such observation as was necessary to make sure that he was clear of defendant’s track sufficiently far to enable a car to pass without coming in •contact with the wagon.
So far as the first proposition is concerned, we think that the jury were authorized to find that the plaintiff made such observations as a prudent person would ordinarily make under the circumstances to •discover whether any car was approaching, and, therefore, to acquit him of negligence in this regard. He had made some effort to discover whether a car was approaching, and whether he exercised reasonable care in that regard was a question for the jury. (Johnson v. Brooklyn Heights R. R. Co., 34 App. Div. 271.)
Upon the other question the case is somewhat closer, but yet we think the evidence presented a question for the jury in that regard. It is to be borne in mind that while the right of the railroad company to have its cars move over its tracks is paramount to the right