#### Carl P. May, Respondent, *v.*The Metropolitan Street Railway Co., Appellant.

(Supreme Court, Appellate Term,

March, 1899.)

negligence — Contributory negligence of a driver.

Where one driving a wagon in the south-bound or most westerly track of a street railroad and intending to pass from it into an easterly cross street, instead of turning east abruptly at a time when he might have avoided a rapidly approaching north-bound car which he saw, takes the risk of driving diagonally over the north-bound track and past a pillar of an elevated railroad structure, standing east of the north-bound track, and is caught between the approaching car and the pillar, although the motorman of the car used all proper efforts to stop it and to give warning, the driver is guilty of contributory negligence and his principal cannot recover the value of the damaged wagon from the street-car corporation.

Appeal by the defendant from a judgment entered in favor of the plaintiff in the Municipal Court, fourth district, New York city.

Henry A. Robinson, for appellant.

Otto H. Dorege, for respondent.

MacLean, J.

One Kelbe, driving a horse with a baker’s wagon on his familiar route, upon the down-town or south-bound track of the defendant company on Second avenue, in the city of Hew York, somewhat above Ninetieth street, one and one-half pillars above Ninetieth street, as he expressed it, and seeing about two and one-half pillars away, a car coming northward upon a *749down grade, and very fast, turned his horse southeasterly to drive into Ninetieth street, first passing between the pillar of the elevated railroad standing about twenty feet north of Ninetieth street, and a little easterly of the up-town or north-bound track, manifestly purposing, so far as he planned anything, to pass between the pillar and the rapidly approaching car before being overtaken by the latter. In this calculation, if calculation he made, he was mistaken, for, although the horse and part of the vehicle safely crossed the track, the wagon was struck by the car and crushed against the pillar. For the damage thus done to the vehicle, the baker brought this action; for the defendant, the motorman testified that he saw the baker’s wagon about two and a half pillars away, a little before it was turned easterly; that so soon as he saw the horse turned from the south-bound track, he sounded the gong as a warning, and that as soon as it became apparent that Kelbe intended to cross the avenue, he took all the means in his power to stop the car, which he did within the shortest space possible, about forty feet. The motorman was corroborated as to his efforts to stop the car by the conductor, by other witnesses for the defendant and also by the plaintiff’s principal witness, other than Kelbe. Still, there might have been something in the statements of Kelbe, and in the circumstances of the accident, warranting the submission to the jury of the question of the defendant’s negligence. It was otherwise as to the absence of contributory negligence on the part of the baker’s driver. Intending, as he said he did, to drive into Ninetieth street he did not cross the avenue directly when he had opportunity, nor did he wait until he had reached Ninetieth street, but he drove diagonally towards the street. Instead of driving, as would a man of ordinary prudence, and as he might be expected to do, tempted by a chance of cutting off a little of the distance, Kelbe took the risk of passing between the pillar and the rapidly coming car, and his employer must take the consequences of his imprudence, and not the defendant company. The judgment should be reversed and a new trial ordered, with costs to the appellant.

Freedman, P. J., concurs; Leventritt, J., taking no part.

Judgment reversed and new trial ordered, with costs to appellant to abide event.