Foley v. Forty-second Street, St. Nicholas Avenue & Manhattanville Railway Co.

Plaintiff and Ms witnesses testify that Ms automobile, while running up Broadway, parallel with, near to, but not on defendant’s track, was struck from behind by one of defendant’s cars, going in the same direction as the machine.

On a motion to dismiss, inferences most favorable to plaintiff’s case must he drawn, and it cannot be said from the facts developed that there was not evidence of defendant’s negligence in failing to observe the automobile which was running ahead of it, for some distance, so near the *650track as to make a collision inevitable if the car attempted to pass it.

If plaintiff’s testimony be true, it was not negligence on his part to fail to look behind for approaching cars.

Present: Scott, Gieocerich and Geeerbaum, JJ.

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