John J. Waters, an Infant, by Catherine Waters, his Guardian ad Litem, Respondent, v. United Traction Company, Appellant

John J. Waters, an Infant, by Catherine Waters, his Guardian ad Litem, Respondent, v. United Traction Company, Appellant. Third Department, June 27, 1906. Negligence — injury to driver of vehicle by surface car rounding corner — contributory negligence. The plaintiff, driving a wagon, was struck and injured by the rear end of a surface car which rounded the corner of a city street on a reverse curve, made necessary by the narrowness of the street. It was shown that had the plaintiff driven fifteen inches nearer the curb, which there was room to do, he would not have beeu struck. But, instead of so doing, he stopped his horse on seeing the car at a time when the rear end of the car, which subsequently struck him was still sixty-five feet distant. Held, that there was contributory negligence which barred a recovery, as the plaintiff had time, space and opportunity 1o avoid the accident. Smith, J., dissented. Appeal by the defendant, the United Traction Company, from a judgment of the Supreme Court .in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the lltli day of January, 1906, upon the verdict of a jury for $450, and also from an order entered in said clerk’s office on the 20tli day of January, 1906, denying the defendant’s motion for a new trial made upon the minutes. Plaintiff, the driver of a mail wagon for the United States government, was on July 10, 1905, in the performance of his duties proceeding from the union railway station in the city of Troy along Broadway to the post office in said city. Broadway extends in an easterly and westerly direction and is crossed at right angles by Union street. The defendant operates a single-track railroad through Broadway west of Union street turning thence northerly into Union street. To make this turn the road of the defendant is constructed with a reverse curve turning first slightly to the sonth_ érly side of Broadway before reaching Union street and then turn, ing north into Union street so as to clear at a suitable distance the sidewalk at the northwest corner of Broadway and Union street. The plaintiff was proceeding westerly on the south or left-hand side of Broadway. Opposite the track of the defendant where it curves to the south a collision occurred between one of the defendant’s cars and the wagon on which plaintiff was riding and he ivas thrown therefrom and injured. For such injuries he has recovered a verdict because of the defendant’s negligence. P. C. Dugan, for the appellant. John F. Murray, for the respondent. [MAJORITY — Cochrane, J.:] Cochrane, J.: The evidence shows that the plaintiff was guilty of contributory negligence. The car was swinging around the curve from Broadway into Union street at the time of the collision. The forward part of the car passed the plaintiff’s wagon in safety. The rear part of t-lie car overhung for some little distance the track on which it was proceeding and collided with the step attached to the shaft of plaintiff’s wagon. The gauge of the wagon was about the same as that of an ordinary wagon. It appeared from the evidence introduced by the plaintiff that after making proper allowance for the projection of the rear end of the car as it swung around the curve there was a clear space of five feet ten inches between the curb and the nearest point thereto approached by any part of the car, a space sufficient to allow the passage of the wagon in question or any ordinary vehicle hy driving sufficiently close to the curb. The plaintiff testified that he knew the rear end of the car would swing out and that he stopped at acplace where the forward wheels of the wagon were opposite a sign post standing within the curb and called to the motorman to stop, but says that instead of stopping the motor man increased the speed of the car. This sign post was five feet easterly of the narrowest place between the curb and the track, and at this point there was a clear space between the curb and the nearest approach thereto of the car of six feet four inches. The width of the wagon between the outside of the.hubs was five feet six inches. The projection of the hub on either side of the wagon was five inches. If the plaintiff had driven close to the cui’b and the"hub of the left side had projected over the curb this would have given a clear space of fifteen inches at the place of collision between the right hub and the nearest point approached thereto by any part of the car. There was no dispute as to these measurements and distances. It further appeared from the plaintiff’s testimony that when he stopped the horse, the ear "was just beginning to make the curve a distance from him of about thirty-five feet. The car wás thirty feet long, so that the rear end thereof which collided with the wagon was about sixty-five feet distant when plaintiff stopped. The car did not strike the wheel but the step attached to the shaft which from the evidence did not project out as far as the wheel. How much the difference in this projection was does not appear, but it is evident that the plaintiff could have driven more than fifteen inches nearer the curb; how much more would depend on■ the extent to which the outside of the right hub projected beyond the step which was struck by the car. It was a bright day. The horse was perfectly manageable. The evidence is that it was standing parallel with the sidewalk at the time of the collision. It is quite clear that had the plaintiff guided the horse to the left and driven closer to the curb as he might have done, especially as he was seated at the left side of the wagon, the accident would not have happened. When he stopped opposite the sign post the rear end of the car was then sixty-five feet distant and he had ample opportunity to turn to the left for a space of more than fifteen inches and avoid the accident. He knew that the rear end of the car would swing around and gives that as his reason for stopping. Instead of using the means at his disposal to avoid the accident which ordinary prudence should have suggested he did nothing. In Matulewicz v. Metropolitan Street R. Co. (107 App. Div. 230) the plaintiff was injured by the rear end of a car as it swung around a curve and the court held him negligent in not observing the simple and obvious precaution of stepping back. The plaintiff in that case it is true was a pedestrian, but that circumstance does not distinguish the ease in principle from this case. Here the plaihtiff had time, space and opportunity to turn to the left and avoid the accident, and his failure to observe this simple and obvious precaution requires a reversal of this judgment. The judgment and order must be reversed and a new trial granted, with costs to the appellant to abide the event. All concurred, except Smith, J., dissenting. Judgment and order reversed and new trial granted, with costs to appellant to abide event.-