Hinode Florist Company, Respondent, v. New York and Queens County Railway Company, Appellant

Hinode Florist Company, Respondent, v. New York and Queens County Railway Company, Appellant. Second Department, March 5, 1909. Trial — negligence — railroad — collision with wagon — charge. Where, in an action to recover for injury to personal property caused by the collision of a street car with a wagon, it appears that plaintiff’s servant knew that cars ran on the track on which he was driving; that he continued for about 300 feet without looking back and there is no proof that he listened for a car, it is error to refuse to charge that, if the driver drove 200 yards upon the track knowing the danger of the situation without making any .effort to ascertain whether a car was coming behind him and that contributed to the ■ accident, the plaintiff cannot recover. Appeal by the defendant, the Mew York and Queens County Railway Company, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 6th day of March, 1908. Anthony J. Ernest, for the appellant. Edgar P. Foster, for the respondent. [MAJORITY — Jenks, J.:] Jenks, J.: The defendant appeals from á judgment of the Municipal Court, entered upon a verdict for the plaintiff in its action to recover damages for injury to personal property. The plaintiff’s wagon was driven onto and passed along the tracks of the defendant sometime ■between 4:30 and 5:30 a. m. of January 11,1907. .While the wagon was passing along the tracks it was overtaken and struck by the defendant’s car. I think that the judgment must be reversed and a new trial be ordered upon the exception taken to the refusal to give this instruction to the jury.: “ If the jury find that the plaintiff’s driver drove two hundred yards or more upon the track knowing the danger of the situation and being familiar with the conditions there existing, without making any effort to ascertain whether the car was approaching behind him, and that contributed to the accident, the plaintiff cannot recover.” It appears that the plaintiff’s • driver knew that cars ran "upon the track. He testifies that he passed along nearly 300 feet before the accident, and that he did not during that time look back for any approaching car, and there is no proof that he listened for one.' Although the headlight of the car had gone out, there is no dispute but' that the car was lighted. Under the circumstances, the defendant was entitled to this instruction. (Belford v. Brooklyn Heights R. R. Co., 86 App. Div. 388.) The judgment is reversed and a new trial is ordered, costs to abide the event. Woodward, Gaynor, Rich and. Miller, JJ., concurred. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.