Vonelling v. Metropolitan Street Railway Co.

The only testimony to support the claim of negligence made by the plaintiff is given by the driver of his wagon which was struck by a car bound south on the east line of defendant’s tracks. The driver, one Fedesio, testifies as follows: “ Oct. 6th at half past seven as I was going over across 86th *302street from West to East, crossing the tracks, I looked uptown, and see no car in sight, as I was over it, and walking the horse going over it, I was struck by a car behind, and knocked the horse down, and knocked the wagon on top, and I and the boy were thrown out.” When it is remembered that the wagon was moving from west to east, and was struck on the easterly track by a north bound car, there was contributory negligence upon part of the driver, from not having looked to the southward from whence the car was approaching. The complaint for that reason should have been dismissed. Had the driver looked in that direction, he would have seen the car, which at least was in plain sight.

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

Present: Scott, P. J., Beach and Fitzgerald, JJ.

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