Jackson v. United Traction Co.

Opinion by William W. Porter, J., It is not necessary to pass upon the adequacy of the testimony in respect to the speed of the car which collided with the plaintiff’s wagon, to prove negligence upon the part of the motorman. There is sufficient in the evidence, to sustain the verdict (directed to be rendered for the defendant), upon the ground of contributory negligence. The collision between the car and [213] the lumber wagon took place about eleven o’clock upon a rainy night. The collision was what is sometimes called “ head on.” There were two tracks upon the street. The plaintiff’s wagon was on the left-hand track going against the course of the cars. The vehicle was somewhat unusual in its length and unwieldiness. It was heavily loaded with lumber. It was drawn by two wheel and two lead horses. It drew into Fifth avenue and in making the turn from Cliff street was compelled to swing across the avenue. There, getting upon the left-hand track, the testimony shows that the driver was unable to pull out and across to the right-hand track. This he says was because of the slipperiness of the tracks due to rain and the rounding of the wheel tires by previous wear. The wheels becoming locked the wagon was dragged, with the horses at an angle to the right, for a distance of some 350 feet, when it was struck by an approaching car which had its headlight burning. The wagon was accompanied by two men and a boy of sixteen. One of the former was driving the horses, the other was apparently seeking something with which to throw the wagon wheels from the tracks. What the boy was doing when the accident took place does not appear, although it was he who was sent in advance to see that the turning from Cliff street into Fifth avenue might be safely made. It is said that the street was lighted by electricity, but the testimony of the motorman is not contradicted that the light was hung over the street and between him and the wagon so that he was unable to see the wagon until after passing the light. The circumstances which convict the plaintiff’s servants of negligence are that they had no light upon their wagon ; that with three persons in charge on finding themselves in a position of danger they sent no one in advance to warn an approaching car, although this act of caution had been performed when making the turn into Fifth avenue; that seeing the car approaching they continued to drive toward it without warning the motorman of their plight; that their detention upon the track of cars having the right of way, was caused in part at least by the worn condition of the tires of their wagon, and that, having a wagon longer than common drawn by an extended four horse team, they failed to exercise the care in its management which its peculiar character and condition demanded. The judgment is affirmed.