John Adolph, Appellant, v. The Central Park, North and East River Railroad Company, Respondent

John Adolph, Appellant, v. The Central Park, North and East River Railroad Company, Respondent. One traveling upon a city street has a right to drive his wagon upon or across the track of a street railroad, and this right is not confined to occasions where the other portions of the street are crowded or obstructed. The only limitation of the right is that he must not unnecessarily interfere with the passage of the cars; these have the preference in the use of the track. (Argued September 39,1874; decided January term, 1875.) This was an action to recover damages for injuries alleged to have been caused by the negligence of defendant’s employe. (Reported below, 1 J. & S., 186.) Plaintiff was driving upon a street in the city of New York, and upon defendant’s track, in a wagon heavily loaded. A car came up behind him going rapidly, so that the horses were not under the complete control of the driver. Plaintiff did not hear the car until it was close up, and did not hear the driver call. Another witness testified he was close to the place of the collision, and did not hear the driver call to plaintiff. Plaintiff, when he ascertained the car was behind him, turned off short, hut before the wagon was clear of the track it was struck by the car and upset, injuring plaintiff and breaking his wagon. At the close of the evidence defendant’s counsel moved for a dismissal of the complaint. The motion was granted, and the court directed a verdict for defendant. Held (Lott. Oh, C., and Dwight, 0., dissenting), error; that the evidence required the submission of the question of negligence on the part of defendant, and contributory negligence on the part of plaintiff, to the jury. The court laying down the principle above stated. M. I. Townsend for the appellant. A. J. Vo/nderpoel for the respondent. [MAJORITY — Earl, C.,] Earl, C., reads for reversal; Reynolds and Gbay, 00., concur. Loir, Oh. 0., reads for affirmance; Dwight, 0., concurs. Judgment reversed and new trial granted.