Richard Warren, Appellant, v. The Union Railway Company of New York City, Respondent

Richard Warren, Appellant, v. The Union Railway Company of New York City, Respondent. Negligence — a covered wagon overturned by a trolley car approaching from the rear' without warning. Where, in an action brought to recover damages for personal injuries, evidence is given which would warrant the jury in finding that the plaintiff was driving a wagon, the back and sides of which were inclosed, along a public,highway, in the center of which the defendant maintained its railway track; that, in consequence of each side of the street being out of repair or incumbered with rubbish, the wheel of the plaintiff’s wagon was only about a foot from the track, and that while the wagon was in this position it was overturned by a trolley car approaching rapidly and without warning from the rear, causing the plaintiff to sustain the injuries complained of, it is error for the court to dismiss the complaint. Appeal by the plaintiff, Richard Warren, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 25th day of April, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury, and also from an order denying the plaintiff’s motion for a new trial. Edwin T. Taliaferro, for the appellant. Alfred Lauterbach, for the respondent. [MAJORITY — Rumsey, J.:] Rumsey, J.: The action was brought to recover damages for injuries suffered by the plaintiff because of a collision between the wagon on which he was riding and á car of the defendant. The evidence would have warranted the jury in finding that the plaintiff, seated in a grocery wagon,' the back and sides of which were inclosed by oilcloth curtains, was driving along White Plains avenue in the city of New York. The defendant’s track was laid in the center of the street. Each side of the street was either out of repair or incumbered with rubbish, so that the passable part of the roadway ran so close to the defendant’s track that the wheel of the plaintiff’s wagon nearest the track was only about a foot from it.. As he was driving in that place, a trolley car of the defendant’s came up rapidly from behind without any warning, struck the wagon in whicli the plaintiff was sitting, threw it over, and inflicted" serious injury upon him. At the. conclusion of the plaintiff’s evidence, which tended to ■establish the foregoing facts, the complaint was dismissed by the "trial court. This is clearly error within the principles established "in the case of Rooks v. The Houston, West Street & Pavonia Feffy R. R. Co. (10 App. Div. 98). ■ A few of the rulings of the court with regard to the admission '■of evidence, which were excepted to,, were erroneous, but in view -of the conclusion we have reached as to the merits, it is not necessary to consider these separate rulings. ■ The judgment and order must be reversed and a new trial granted, "with costs to the appellant to abide the event. Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred. Judgment and order reversed, new trial ordered, •costs to appellant ;to abide event.