Reilly v. Metropolitan Street Railway Co. , 57 N.Y.S. 278 ( 1899 )

Freedman, P. J.

This is an action to recover for damages to a wagon of the plaintiff, caused by the alleged negligence of the defendant.

The driver of plaintiff’s wagon was going west on One Hundred and Twenty-sixth street of this city. As he arrived at the crossing at Eighth avenue a car of the defendant was going north. The driver swung the heads of his horses slightly towards the left to avoid this car, and after it had passed him and when his horses were upon the easterly track he saw a south-bound car approaching at least one-half a block distant. The crossing was clear and he was driving upon a fast walk.

The horses and forward part of the wagon had cleared the westerly track when the car struck the hind wheel of the wagon and carried it against a pillar of the elevated railroad structure and damaged it, for which this action is brought. These facts were testified to by the driver and are practically undisputed. The only ground urged for a reversal of the judgment upon this appeal is that the plaintiff’s driver was guilty of contributory negligence. The testimony was sufficient to raise the question of fact for the determination of the court upon the question of the contributory negligence of the plaintiff’s driver, it being the province of the trial judge to pass upon such question in the absence of a jury.

The accidefit occurred at a crossing, where the rights of the plaintiff to the use of the street for travel were equal to those of the defendant. The case comes' well within the rule laid down in Hart v. Hudson River Bridge Co., 80 N. Y. 622, “ Where, from the circumstances shown, inferences are to be drawn which are not certain and uncontrovertible and may be differently made by different minds, it is for the jury to make them.”

The court found upon the questions presented for his determination, in favor of the plaintiff, and it not being shown that injustice had been done, the judgment must be affirmed.

MacLeah, J., concurs.

Judgment affirmed, with costs.