Pechesky v. Metropolitan Street Railway Co.

The plaintiff brought this action to recover ■for personal injuries and damages to his horse and wagon occasioned by a collision with one of the defendant’s cars. The plaintiff was driving a covered wagon, and, coming out of Delancey ■street in the city of New York, drove a short distance up the Bowery in the direction of Spring street, intending to cross the Bowery from east to west. As he was driving out of Delancey street he saw a car at Broome street, coming uptown at a distance •of about 250 feet away. After proceeding northerly upon the track of the approaching car for some distance, he turned west, and as a portion of his wagon got off the car- track it was struck *433by the car and the injuries complained of were received. There was no testimony to show that, from the time the plaintiff went upon the ear tracks at or near Delancey street, and then saw the car near Broome street, he again looked or made any attempt to ■observe the approaching car. He voluntarily placed himself in a dangerous position by going upon the track conscious of the approach of a car, and thereafter relied wholly upon the vigilance of the employees of the defendant to enable him to escape danger. Under such circumstances it cannot be said that he was free from negligence. The judgment must, therefore, be reversed.

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

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