Philip J. Bang, Respondent, v. New York and Queens County Railway Company, Appellant

Philip J. Bang, Respondent, v. New York and Queens County Railway Company, Appellant. Second Department, June 15, 1906. Negligence — wagon driven onto track struck by electric car — evidence, that driver looked behind while turning or was already on the track requisite to recovery—verdict for plaintiff hot supported by evidence. 'When a wagon is turned into the tracks of an electric railway at night, with the result that it is struck and injured by a car coming from behind, the plaintiff must show, in order to recover, that the driver looked behind him when he turned into the track, or that he had completed the turn and was moving along the track when struck." A verdict for the plaintiff is not supported by mere evidence of his driver brought out by a leading question showing that he had driven on the track “quite a distance,” such distance being too indefinite. If the wagon were struck while turning into the track, either the driver saw the car or he did not look, for the car was lighted. Hence, his testimony that he did look is insufficient to support a verdict. Woodward and Rich, JJ., dissented. Appeal by the defendant, the New York and Queens County Railway Company, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff, entered upon the verdict of a jury. Action for damages to the plaintiff’s wagon by the negligence of the defendant. ' " Van Vechten Veeder and John Hetherington, for the appellant. A. Van Dewater, for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: This verdict has no foundation to rest on. The driver of the plaintiff’s wagon was, driving along beside the defendant’s electric car track in a broad highway of a dark night. His entire evidence in chief is that as the road was slippery he turned into the car track and a car came up in the rear and ran into the wagon. He was the only witness of the occurrence called by the plaintiff. He does not say he looked back before turning, or that he had completed his turn and was going along on the track before he was run into. It was for the plaintiff to show these things. It can scarcely be necessary to say that if a driver turn into aii electric car track" so close in. from of a caí" coming up behind him as to bring on a collision, there can be no recovery against the railroad company for the damage done. It is his business to look before turning and not to turn if a car be too close. The cross-examiner for the defendant did all' he could to supply the deficiencies and make out a case for the plaintiff. He drew from the witness with much pains and difficulty that he.Iooked before turning and saw no car, and also'that he had at least comipleted the. turn-and got straightened out along the track before the collision. The plaintiff’s counsel then asked the witness the leading question if he "had not gone along on the track “ quite a distance ” before the collision, and got an affirmative answer. But it was not' permissible for the jury to interpret that 'indefinite phrase to mean any definite distanee¿ The Witness might have meant afoot, aiid the evidence was worthless. The car was lighted by electricity and if the driver had looked he could -not hav-e failed to see it. He either saw it or did hot look. ’ In either case the plaintiff cannot recover. And if the weight of evidence had to be considered the verdict is clearly against it. The judgment should be reversed. Hirschberg, P. J., and Jenks, J., concurred; Woodward and Rich, JJ., dissented. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.