Dwyer v. Metropolitan Street Railway Co.

Although the evidence was conflicting there was sufficient to justify the judgment. If it were held to be contributory negligence as a matter of law to attempt to cross a railway track with a. horse and wagon when a car is a block and a half away, all travel except by surface cars would practically have to be suspended. The motorman admits that he saw the wagon on or near the track when he was about a block away, and he should then have taken the necessary measures to avoid a collision. His story that the horse swerved into the car after he had safely cleared the wagon lacks corroboration, and the justice was warranted in disregarding it.

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

Judgment affirmed, with costs.