James Murphy, Respondent, v. Nassau Electric Railroad Company, Appellant

James Murphy, Respondent, v. Nassau Electric Railroad Company, Appellant. Negligence — collision of a court with an electric street car — contributory negligence — dangerous situation not sought by the driver. On the trial of an action for an injury caused by the collision of a cart with an electric street car, the evidence tended to show that the driver of the cart, proceeding eastward, was obliged, by the presence of another cart between his own and the curb, to drive upon the east-bound track of an electric street railroad ; that, after having thus proceeded for some distance, the motorman of an east-bound car, approaching from the rear, signaled him to get off that track; that the position of the other cart being still such as to prevent his turning toward the curb, he then drove upon the west-bound track; that after he had followed this about 100 feet and at a time when still another car on the eastbound track was not far behind his position, he saw, while at a distance from it of from 100 to 200 feet, a west-bound car, which had come around a corner, approaching rapidly; that he then turned to go back into the east-bound track, but failed to clear, and was struck and inj ured by the west-bound car. The jury found that there was no danger when the plaintiff turned upon the westbound track; that he did not go i-nto a position of danger; that the necessity of continuing on the west-bound track was not removed when he attempted to turn from the west to the east-bound track and that the car was at such a distance from the cart as to make it safe for the plaintiff to be upon the west track. Held, that the driver of the cart was not guilty of contributory negligence and that, in turning upon the west-bound track, he did not voluntarily and unnecessarily place himself in a position of danger. Appeal by the defendant, the Nassau Electric Railroad Company, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 4th day of February, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of February, 1897, denying the defendant’s motion for a new trial made upon the minutes. . Henry Yonge and C. J. Shearn, for the appellant. John F. Clarke, for the respondent. [MAJORITY — Goodrich, P. J.:] Goodrich, P. J.: The plaintiff sues to recover- for- damages which he suffered by a collision with a car of the defendant, which ran westward along Johnson avenue. He was employed by the contractor- for cleaning Jolmsoh avenue and other streets in the city of Brooklyn and was driving a cart eastward at the time of the accident. Street dirt had been gathered along the sides of the avenue, and the cart which the plaintiff was usings and another cart, were being filled with this dirt.- After loading his cart the plaintiff started for the dump, some distance further to the eastward. Between the east-bound track and the curbstone was the other cart then engaged in taking up dirt, which obliged the plaintiff to drive upon the east-bound track, along which he proceeded for some distance when he was signaled by the motorman of a car behind him to get off the track. The position of the other cart prevented his going between this track arid the curb and he drove over upon the west-bound track and proceeded along it for a distance variously estimated in the neighborhood of 100 feet, until the, car had either reached or passed him. Another car was on-the east-bound track a short distance behind the first-named car and had arrived at or near the point of collision at the time of the accident. While the plaintiff was thus driving upon the west-bound track, a third car came around the corner of Johnson avenue and a cross street, several hundred feet distant. The plaintiff saw this car, as he testifies, half a block away, probably 100 or 200 feet, the block being a long one, and when he saw it he turned to go into the east track, but the car was coming so fast that he could not get out of the way in time to avoid the collision, his wheel catching and scraping along the track. The left-hand wheel of the cart was struck by the car and badly broken, the cart upset and the plaintiff thrown under the car and dragged some 25 or 30 feet, receiving serious injury. As to all the salient questions of fact there is much conflicting . testimony. The plaintiff has produced his fellow-workmen and a passenger, and the defendant has produced conductors or motormen from the three cars and passengers and bystanders, who give varying testimony as to the different circumstances of the collision. The court submitted to the jury these questions of fact, and we must assume for the purposes of this appeal that all of these questions were decided in favor of the plaintiff. The defendant’s counsel, however, contends that even upon the plaintiff’s version of the accident, he was guilty of contributory, negligence because, being confronted with danger, he turned on to the west-bound track, which he might have avoided doing with only slight delay and inconvenience,, by turning towards the curb until the car had passed; that he was negligent in taking the former course, and that, having gone into a position of danger, and the necessity for continuing there, if any, being removed, it was negligence for him to remain upon the west-bound track until it was too late to escape. There is no doubt of the correctness of the abstract view stated, but the difficulty is that the jury have found the facts assumed by defendant’s counsel adversely to his assumption. The facts deducible from the Verdict are that there was no danger .when the plaintiff turned into the west-bound track; that he did not go into a position of danger; that the necessity of continuing on the wéstbound track was not removed when he attempted to turn from the west to the east-bound track, and that the car was at such a distance from the cart as to make it safe for the plaintiff' to be upon the west track. Under these circumstances, the verdict of the jury ought not to be disturbed, as there was ample evidence to justify their findings on all these questions. All concurred, except Bartlett, J., not sitting. Judgment and order unanimously affirmed, with costs.