Steel-Drake Baking Company, Respondent, v. H. C. & A. I. Piercy Contracting Company, Appellant

Steel-Drake Baking Company, Respondent, v. H. C. & A. I. Piercy Contracting Company, Appellant. Second Department, October 7, 1910. Highways—negligence—collision between vehicles at street intersection — facts justifying recovery. Action to recover for injuries to a horse and vehicle which were struck by a heavily loaded truck negligently driven down a steep grade leading to a street intersection. Evidence examined, and held, that the contributory negligence of the plaintiff was a question for the j uryand that a verdict in his favor should be affirmed. Appeal by the defendant, the H. C. & A. I. Piercy Contracting Company, from a judgment of the Municipal Court in favor of . plaintiff, and from an order denying a motion for a new trial, Irving W. Teeple, for the appellant. Charles C. Brainerd, for the respondent. [MAJORITY — Woodward, J.:] Woodward, J.: The plaintiff has a judgment, entered on the verdict of a jury in the Municipal Court, for $327 damages sustained by its horse in a collision with a wagon of defendant, at the junction of Water and Roosevelt streets, borough of Manhattan, on January 13, 1909. It is not seriously contended on this appeal that the defendant was not guilty of negligence in driving a heavily-loaded truck down a steep grade at a trot approaching this busy street intersection, but it is urged that plaintiff was guilty of contributory negligence as matter of law, in that its driver could or should have seen the approaching vehicle in time to have avoided the accident by stopping. We are of opinion that the evidence was sufficient to permit the case to go to the jury upon this point, and that we are not called upon to interfere. Plaintiff’s driver testified that he was prevented from seeing the approaching team until it was quite near him, owing to an obstruction; that when he did see the team approaching at a rapid rate he stoppéd as quickly as he could; that liis horse was hard bitted and did not stop promptly. He was driving upon a walk, following another vehicle; and while it may seem probable that he might have stopped- his' horse soon enough to have avoided the collision, it is to be remembered that the jury heard all of the testimony ; that they are familiar with the location, and that the plaintiff’s driver had a right to drive liis rig on the assumption that every other driver, in approaching a busy street intersection, would observe due care. The judgment appealed from should be affirmed, with costs. Present — Woodward, Jenks, Thomas, Bioh and Carr, JJ. Judgment and order of the Municipal Court unanimously affirmed, with costs.