#### Edgar A. Iveson, an Infant, by Henry T. Iveson, His Guardian ad Litem, Respondent, *v.*United Traction Company, Appellant.

Third Department,

November 12, 1913.

Railroad — negligence — contributory negligence — collision of grocery wagon with street car — evidence — witness—refreshing recollection — right of way at intersection of streets.

Action by a minor for injuries sustained by collision with defendant’s street car while driving a grocery wagon across the track. Evidence examined, and *held,*sufficient to justify the submission to the jury of the question of defendant’s negligence in failing to give warning of the approach of the car, and in failing to keep it under reasonable control; that the plaintiff was free from contributory negligence, and that a judgment in favor of the plaintiff should be affirmed.

Where the plaintiff had testified that he did not remember that the southbound car had stopped before he attempted to cross the track and was struck by the north-bound car, it was not improper for his counsel to ask him, for the purpose of refreshing his recollection, if he had not stated at or near the time of the accident that the south-bound car had stopped, and that passengers were alighting therefrom.

Since the accident occurred at the intersection of the streets, it was not error for the court to refuse to charge that at this point the defendant’s car had the paramount right of way.

Appeal by the defendant, the United Traction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 8th day of March, 1912, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 25th day of March, 1912, denying defendant’s motion for a new trial made upon the minutes.

*Patrick C. Dugan,*for the appellant.

*Thomas S. Fagan,*for the respondent.

Smith, P. J. :

Pawling avenue in the city of Troy runs north and south. To the east and out of Pawling avenue runs Gregory avenue. To the west and about thirty feet south of the center line of Gregory avenue runs Monroe court, which is another avenue. Upon the day in question plaintiff, a boy nineteen years of age, was driving a grocery wagon south on Pawling avenue. Upon *28reaching Gregory avenue he attempted to cross the track and was struck by one of the defendant’s cars. It is contended by the plaintiff that the defendant was negligent in failing to give warning of the approach of that car, and in failing to keep the car under reasonable control, and that the plaintiff was free from contributory negligence.

Without discussing in detail the evidence of defendant’s negligence, it seems clear to me that a case was made for the jury thereupon. Gregory avenue is so near a continuation of Monroe court, with the centers of the streets only thirty-five feet apart, that this may well be deemed an intersection, even if the conjunction of Gregory avenue itself with Pawling avenue irrespective of Monroe court might not be so deemed. .At all intersections, or wherever in the use of the streets a crossing of the track is a necessary incident to such use, the duty of additional care is imposed upon the defendant in the running of its cars, and irrespective of the question whether or not the car going south had stopped at Monroe court, the jury had the right to find that the defendant did not exercise reasonable care in keeping its car under control as it approached Gregory avenue, where the plaintiff was required to cross the defendant’s tracks. The evidence further is to the effect that no warning was given by bell or other signal of the approach of the car and no light shown though after dark, which only strengthens the claim of the plaintiff that sufficient evidence was introduced to authorize the jury to find that the defendant had not performed its full obligation to the plaintiff in approaching this crossing. The evidence as to plaintiff’s contributory negligence was also sufficient to support the conclusion of the j ury thereupon. Before crossing the tracks to enter Gregory avenue plaintiff had looked back and found the car going south approaching him. After that car had passed he again looked back to see if another car was following, and claims that he also looked to the south, where his vision to an extent was obstructed by the south-bound car. There is some evidence to the effect that there was no light upon the car. Without warning of the approach of the ear and with the exercise of such care as was testified to, the jury was authorized to find the plaintiff’s freedom from contributory negligence.

*29Defendant also seeks the reversal of this judgment upon exceptions to rulings at the trial and to the. charge of the trial court. The plaintiff was upon the stand and had sworn that he did not know whether the south-hound car had stopped at Pawling avenue. This had become an important question, because it was in evidence in the case that under the defendant’s rule where a car had stopped a car going in the other direction must also stop before passing. Up to this time the evidence was quite conclusive that the south-bound car had not stopped at the time that the car had passed which caused the accident. Plaintiff upon the stand had sworn that he did not remember the fact, and was asked by his counsel if he had not made a statement of the facts of the case at or near the time of the accident, in which he had stated that this car was stopped and passengers were alighting therefrom. This was asked for the purpose of refreshing his recollection. He answered that he had, and upon his recollection being refreshed he swore upon this trial that the car had in fact stopped and passengers were alighting therefrom at the time he started to cross the defendant’s tracks. This ruling would seem to be justified by the case of *Bullard*v. *Pearsall*(53 N. Y. 230). Again, the charge of the trial court as first made seemed to impose upon the defendant the duty of having the car under such control as to avoid accident. To this an exception was taken. If the attention of the court had been specifically called to the rule that the motorman was only required to exercise reasonable care to that end, the charge would undoubtedly have been modified to meet the objection. In fact the defendant’s counsel asked the court to charge “that if the jury find that the motorman had his car under reasonable control as he approached Gregory avenue, and that he attempted to stop as soon as the danger of a collision first became apparent, that then the verdict must be for the defendant,” and this request the court granted. If the rule had been too strictly stated in the charge of the court before this time the error was corrected by the granting of this request, and had the defendant desired a more explicit statement of the rule of reasonable care he should have asked it. The further criticism is made that the court differentiated between the care required in the crossing.of *30a steam railroad and of a street railroad, charging that the failure of a passenger crossing a street railway to look did not *per se*constitute contributory negligence. But the court did charge, however, in response to defendant’s request, that if the plaintiff *could have seen*the lighted car approaching he had no right to take any chance to cross in front of the car, and if he did take a chance he was guilty of contributory negligence as matter of law. The refusal of the court to charge that at this point the defendant’s car had the paramount right of way was not error, as this was in fact an intersection at which the passing vehicle had an equal right of way. Other objections are made to this recovery, which we have examined and find insufficient to cause a reversal of this judgment. No criticism is made as to the amount of the verdict. The plaintiff’s horse was upon a walk and had'gotten over the track, so that the car struck the wagon. This fact would seem to indicate that the car might have been a long distance from the intersection at the time plaintiff started to cross the track, and if under control might well have been stopped in time to have avoided the accident. I am satisfied that another trial would only result in another verdict for the plaintiff, and find no substantial error which in my judgment is sufficient to cause a reversal of the judgment. The judgment and order should, therefore, be affirmed, with costs.

Judgment and order unanimously affirmed, with costs.