Lillian Lynch, a Minor over Fourteen Years of Age, by Mary Lynch, Her Guardian ad Litem, Appellant, v. United Traction Company, Respondent

Lillian Lynch, a Minor over Fourteen Years of Age, by Mary Lynch, Her Guardian ad Litem, Appellant, v. United Traction Company, Respondent. Third Department, June 28, 1911. Railroad — negligence — collision with-wagon; Where in an action to recover for personal injuries alleged to have been caused by defendant’s negligence it appears that plaintiff, a girl nineteen years old, asked the driver of a milk wagon for a ride; that he assented and plaintiff and a companion climbed into the seat; that as the wagon was proceeding southerly along the street on a south-bound trolley track it was overtaken by a car; that as a truck prevented- the driver from turning to the right he turned to the- left to leave the track and so brought his wagon across the north-bound track and that while he was attempting to cross this, a north-bound car struck the wagon so - that plaintiff was thrown out and injured, and it further" appears that ■ the motorman of the ear had an unobstructed view of the track for four hundred feet; that he made no effort to stop his car, which was going very fast, and did not stop it until it had gone ten or twelve feet beyond the point of collision, it is error to dismiss, the complaint at the close of the plaintiff’s case. Appeal by the plaintiff, Lillian Lynch, a minor, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 9th day of December, 1910, upon the dismissal' of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Albany Trial Term. The dismissal was upon the sole,ground that the.plaintiff had failed to show that the '.defendant was chargeable with negligence. John W. Roddy and William E. Woollard, for the appellant. ' • Patrick C. Dugan, for the respondent. [MAJORITY — Sewell, J.:] Sewell, J.: The plaintiff, a girl nineteen years of age, was injured in a collision between one of the defendant’s cars and a milk wagon, in which she was riding, about five o’clock in the afternoon of the 7th day of May, 1910. The evidencé given on the trial tended to show that á short time before the accident the plaintiff and two other girls were walking along Broadway, in the city of Albany, when they saw a milk wagon, drawn by one horse, going in a southerly direction on the southbound track of the defendant’s street surface railroad. They asked the driver for a ride. Hé stopped and the plaintiff and her companions climbed into the seat. They then proceeded southerly upon the track until .they were overtaken by a south-bound ear. The motorman sounded his gong as a signal to the driver to get off' the track and let the car go by. A truck going in the same direction on the westerly side of the track prevented the driver of the milk wagon from turning to the right. He, therefore, turned to the left and was attempting to cross the north-bound track into the roadway beyond when the rear end of the wagon was struck by one of the defendant’s cars coming from the south and the plaintiff was thrown out and injured. . It also appeared .that for more than 400 feet north from the point of collision the tracks were practically straight; that the motorman had an unobstructed view of the track during the whole of this distance, and there was evidence from which it might be fairly inferred that he made no effort to stop the car or to avoid the accident. The plaintiff testified that the car was going very fast when it was 250 feet away; that “ it was going at the same rate of speed 10 feet away from me,” and that it was not stopped until it had gone 10 or 12. feet beyond. I think that these facts were sufficient' to justify a finding that the defendant’s motorman was negligent in the management of his car. It follows that the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event. All concurred. Judgment reversed and new trial granted, with costs to appellant to abide event.