(115 App. Div. 569)

#### CLANCY v. NEW YORK CITY RY. CO.

(Supreme Court, Appellate Division, Second Department.

November 16, 1906.)

1. Street Railroads—Operation—Negligence—Collision with Vehicle.

It was negligence for the operatives of a street ear, which collided with plaintiff’s vehicle, to cause it to approach a street intersection at a speed of 15 miles an hour.

[Ed. Note.—For cases in point, see vol. 44, Cent. Dig. Street Railroads, §§ 190-194, 200.]

2. Same—Contributory Negligence.

In an action against a street railroad for injuries to plaintiff’s horse in a collision between plaintiffs team and a car, it appeared that, when plain*1047tiff drove into the street in which the tracks were laid, the car was a block distant and approaching at a speed of 15 miles an hour, and the team moving at the rate of 4 or 5 miles an hour ; that plaintiff undertook to cross the track, and, when he saw that a collision was probable, turned his team sharply to the direction in which the car was going. *Held,*that such facts did not show contributory negligence.

[Ed. Note.—For cases in point, see voi. 44, Cent. Dig. Street Railroads, §§ 210-216.]

Appeal from Municipal Court of New York.

Action by Frank J. Clancy against the New York City Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Argued before HIRSCHBERG, P. J., and WOODWARD, HOOKER, RICH, and MILLER, JJ.

William E. Weaver, for appellant.

WOODWARD, J.

This is an action to recover damages for an injury to plaintiff’s horse, resulting in the complete loss of the animal. If the plaintiff’s principal witness, his driver, is to be believed, the accident occurred under such circumstances that the defendant is liable, and this would seem to be true if the accident occurred in the manner described by other witnesses, though the two versions materially differ. The accident, according to the driver, resulted as follows: The team was on Fifty-Seventh street, crossing Third avenue. As the team came into Third avenue, the defendant’s car was near Fifty-Eighth street, running at 15 miles an hour. The team was going at the rate of 4 or 5 miles an hour, and had crossed the north-bound track, and was well over the south-bound track, when defendant’s car hit the rear wheel of the truck and turned it around in such a way that the horse’s leg was broken in the wreck. Other witnesses testify that the team did not reach the south-bound track; that the driver apparently anticipated a collision, and turned his team sharply to the south, in the direction the car was going, and that the car struck the plaintiff’s wagon as it was running along in the same general direction. But in either event the car was undoubtedly approaching a street intersection at a rate of speed which the court was justified in holding to constitute negligence, and the action of the driver, either in attempting to cross, where he apparently had plenty of time, or in turning his team to the south in an effort to avoid the collision, would justify the conclusion of absence of contributory negligence, so the mere fact that the witnesses do not agree upon exactly what occurred does not defeat the plaintiff’s right to recover, provided the facts established by the evidence were such as to fix responsibility for the accident, and we are of opinion that the plaintiff established the necessary facts.

The judgment appealed from should be affirmed, with costs. All concur.