Tyson v. Union Traction Co.

Opinion by Me. Justice Pottee, Plaintiff drove a two-horse team, drawing a load of hay, from a hotel yard, out upon Germantown avenue. The roadway at that point was forty feet wide, from curb to curb. The defendant company had two tracks upon the street, and a space of more than twelve feet was left upon each side, between the curb and the nearest rail. When the plaintiff drove out of the yard, he stopped.his team, with the front wheels resting in the gutter. He was upon the east side of the street, intending to go north. He looked up, and saw a car approaching from the' north, coming upon the south-bound track, which was the one farthest from him. He testifies that he thought the car was far enough away, to permit him to drive across both tracks, before it reached him. He therefore started his team, to go directly across, and when his front wheels were on the southbound track, the wagon and car collided, causing the injury complained of. There was nothing to put the motorman on notice of any impending collision, until the horses had actually stepped upon the track upon which the car was approaching. The plaintiff could have remained where he was, until the car passed, or he could have turned directly into the first track, which was the right-hand track going north. He did neither, but chose to drive directly across the street. The testimony does not show how far the car was, from the horses, when they first entered upon the line of the south-bound track, but it was so .close, that the team, which plaintiff said were quick steppers, had only time to barely clear the track, which was five feet wide, leaving the front wheels, and the body of the wagon to he struck by the car. The evidence seems to show that the motorman did everything within his power to stop the car, as soon as he had reason to apprehend a collision. He put on [267] his brakes so tightly that the wheels slid. But whether he did or not, the contributory negligence of the plaintiff was most apparent, and there can be no recovery in this case. The learned court below was entirely right in directing a verdict for the defendant. The first, second, and third specifications of error are without merit. It is doubtful if the declarations of the motorman and conductor, which were sought to be proven, were in any proper sense, part of the res gestae. But even if admitted, the evidence could not affect the result, as the contributory negligence of the plaintiff is established, beyond question. The judgment is affirmed.