New York Bread Co. v. New York City Railway Co.

Freedman, P. J. One of the plaintiff’s wagons was standing in front of a store on the west side of Second avenue between Fifty-fourth and Fifty-fifth streets. It was facing south, and was quite near the southerly end of the block, viz., about forty feet north of Fifty-fourth street. The driver came out of the store, walked to the curb where the wagon stood, got upon the wagon and drove in a southerly direction diagonally across Second avenue. He intended to go east through Fifty-fourth street. After the wagon had proceeded a distance of from fifteen to twenty feet it was struck by one of defendant’s south-bound cars, pushed against an elevated railroad pillar and injured, and for the damages occasioned by such injury this action was brought. Plaintiff had judgment. It appears from the testimony that before the driver left the curb he looked north and saw that the car which struck him was then north of Fifty-fifth street “ moving at a moderate rate of speed.” The car struck the front part of the wagon. It further appears that in order to fully clear the defendant’s track it would only have been necessary to traverse a distance of from twenty to fifty feet, and there was testimony to the effect that at the time the front wheels reached the track the car was from fifty to one hundred and twenty feet distant. There was also evidence from which it might be said the motorman rang no bell. Under the circumstances the questions of negligence were those of fact and not of law; the facts in the case are materially different from those in Cosgrove v. Interurban St. R. Co., 84 N. Y. Supp. 885, and Groening v. Interurban St. R. Co., 88 id. 355. Judgment affirmed, with costs. Gildersleeve. J., concurs.