APPEAL by the plaintiff, Hugh Lennon, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 17th day of November, 1911, upon the dismissal of the complaint by direction of the court at the close of the plaintiff's case on a trial at the Queens County Trial Term.
Burt L. Rich [Martin T. Manton with him on the brief], for the appellant.
D. A. Marsh [George D. Yeomans with him on the brief], for the respondent.
The action is brought to recover damages for personal injuries sustained by the plaintiff as the result of a collision between a heavily-loaded beer truck which he was driving and one of the defendant's trolley cars at the intersection of Lee avenue and Lynch street, in the borough of Brooklyn. These highways cross each other at right angles, the avenue extending north and south, and the plaintiff, driving west on the north side of Lynch street, had almost crossed the first of a double line of trolley tracks on Lee avenue when the defendant's trolley car, proceeding north on the avenue, struck the left hind wheel of the beer truck with such force as to push it
over towards the westerly side of the avenue and to throw the plaintiff from his seat to the ground. The occurrence took place in broad daylight. The load on the brewery wagon weighed 5,200 pounds. The horses were walking and had proceeded so far in crossing the track that the car caught the hind wheel of the truck, as stated above. The plaintiff's evidence is generally to the effect that when he reached what he calls the 'building line' of Lee avenue the car was about seventy or seventy-five feet distant; that it was fifty feet away when his horses stepped on the first track; that he 'hollered at the motorman to stop; ' that he whipped the horses up as soon as he saw that the motorman was not going to stop, but that he was unable to get clear of the car in time to avoid a collision. A corroborating witness for the plaintiff testified that he was standing near the scene of the accident and that when the plaintiff's wagon was on the north-bound track, the first track it came to, ' all of a sudden a car shot past the corner and hit the truck.' It seems to be undisputed that the car was going very rapidly and that the truck was moving slowly under a very heavy load; and as it had nearly crossed the tracks sufficiently to avoid danger at the time of the actual collision, it would seem clear that under the authorities the questions of negligence and of contributory negligence should have been submitted to the jury for determination.
It may be that a jury would resolve the questions adversely to the plaintiff, and it may even be that such a result could not be set aside as against the weight of evidence. It cannot be said, however, that there is no room in the circumstances for a fair difference of opinion, and the solution of the questions presented must, therefore, be dependent upon the facts as distinguished from the law alone.
In Wolfkiel v. Sixth Ave. R. R. Co. (38 N.Y. 49) it was held as per the head note that the rule is well settled that it is a matter of right in the plaintiff to have the issue of negligence submitted to the jury when it depends upon conflicting evidence, or on inferences to be deduced from a variety of circumstances, in regard to which there is room for fair difference of opinion among intelligent men.
In Payne v. Troy & Boston R. R. Co. (83 N.Y. 572) the
rule was reiterated, the court saying (p. 574): 'If there is any evidence from which a jury might find in favor of the plaintiff, the case should not be withdrawn from their consideration. The testimony here as to the defendant's negligence is not very strong, and the case is a very close one on the question of such negligence; yet it was not so destitute of facts and circumstances for the consideration of the jury, and so clear against the plaintiff, as to leave no room for doubt, and to justify the court in holding that there was no evidence of negligence.' To the same effect is Weil v. D. D., E. B. & B. R. R. Co. (119 N.Y. 147).
In Huther v. Nassau Electric R. R. Co. (142 A.D. 522) this court has recently held that the right of the street railroad and of vehicles at intersecting streets are equal; that the railroad company is chargeable with negligence where the motorman failed to have his car under control while crossing an intersecting street, with the result that while driving at a high rate of speed he collided with a vehicle crossing the track; and that it is for the jury to say whether a person driving across the tracks was guilty of contributory negligence, where by reaching the crossing first he had earned precedence in passing over, even though when he first saw the car it was going at a high rate of speed, for he had a right to expect that it would be kept under reasonable control. The court said (p. 523): 'The negligence of defendant was clearly established. At intersecting streets the superior right of way, which ordinarily belongs to a street surface railroad, yields to the necessities of the situation, and its rights and those of vehicles passing along the intersecting streets are equal. As a consequence it is the duty of the motorman operating the car to exercise reasonable care to have it under control as it approaches the point of intersection. The evidence warrants a conclusion that he made no effort to check the speed of the car. In determining the question of ...