#### Frederick Dietrich, Respondent, *v.*The Brooklyn Heights Railroad Company, Appellant.

Second Department,

January 10, 1908.

Railroad—injury to vehicle on track — right of way — charge approved.

While a street railway has the right of way between .places-where streets intersect, other vehicles may be driven lawfully upon its tracks and may stay there until there is a reasonable opportunity to get off with safety.

When in an action to recover for injuries to a wagon which was struck from the rear by the defendant’s car while driving on the track, it appears that the - plaintiff's driver was pocketed between deep snow and a car approaching from the other.direction, it is proper to charge that if the driver used reasonable care and could not leave the track because of the obstacles aforesaid, the defendant’s paramount right of way was for the time suspended.

-Appeal by the defendant, The Brooklyn Heights . Railroad Company, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 12th day. of March, 1907, upon the verdict of a jury for $378.75, and also from an order entered in said clerk’s office on the 5th- day of April, 1907, denying the defendant’s motion for a new trial made upon the’ minutes.

*605
      *D. A. Marsh [George D. Yeomans*with him on the brief], for the appellant.

*Martin T. Manton,*for the respondent.

Hooker, J.:

The plaintiff’s wagon and horses were injured by being struck by one of the defendant’s trolley cars, approaching from the rear. The jury were justified from the evidence in believing that the plaintiff’s driver was in a kind of a pocket because of deep snow in the street between the curb and the track on which he was driving and because of a car approaching from in front on the driver’s left. The plaintiff asked the court to charge the jury that if they found *“*that the driver used his best endeavor and exercised such care as may be charged to a reasonably prudent man in driving his truck, but because of obstacles on the side of the track and on the opposite track he was in such a box he could not get out of the car track, then for that time the rule of paramount right of way was suspended.” The court charged the proposition, the defendant excepted and now urges that this was error for which the judgment should be reversed.

While as a general proposition the street car has a paramount right between the places where streets intersect, this right does not mean that the operator of a car may run down one who happens to be lawfully in the track. The plaintiff’s driver had a perfect right to be in the defendant’s track, but owed the defendant a duty upon the approach of a car to get out of that track as soon as he reasonably could. In.this case the jury were justified in finding that the driver could not reasonably get off of the track to the right on .account of the snow, and that it would have been imprudent to try to go to the left on account of the car approaching from the opposite direction. There being no criticism of the conduct of the driver in going upon the track in the first place, lie was entitled to stay in the track until lie could reasonably get out, arid he had as much right to use that'part of the street where the car tracks had been laid until he could leave it, as the car itself. The right of the car there, under the circumstances, was, therefore, not paramount, and the charge of the learned trial court presented no error.

*606We have examined the multitude ■ of .exceptions taken by the defendant to the question of the measure of damages but find no error presented by the record, and conclude that the' judgment, must be affirmed, with costs.

Present — Jenks, Hooker, Gaynor, Rich and Miller, JJ.

Judgment' and order of the County Court of Kings county unanimously affirmed, with costs.