#### Abraham Holzman, Respondent, *v.*The Metropolitan Street Railway Co., Appellant.

(City Court of New York, General Term,

May, 1900.)

Negligence — Right of expressman to unload, although his wagon encroaches on street car tracks.

An expressman has a right to unload from his wagon, although this requires it to overlap the tracks of a street railroad company; and where a driver of a car misjudges the possibility of passing the wagon without colliding, and attempts to pass without giving any warning or making any request to be allowed to pass, a verdict in favor of the expressman, for personal injuries sustained by being thrown from the wagon by the collision, will be sustained.

Appeal from a judgment of the City Court of the city of New York, in favor of the plaintiff, entered on a verdict, and also from an order denying a motion for a new trial on the minutes. The action was brought to recover damages for personal injuries, caused by the alleged negligence of the defendant.

Henry A. Robinson (Charles E. Brown, of counsel), for appellant

Sanders & Rosenstein, for respondent.

Eitzsimons, Oh. J.

The evidence clearly shows that, at the time of the accident in question, the plaintiff’s wagon was in such a position opposite 141 Delancey street, New York city, that the *645defendant’s car could not pass it. The defendant’s driver recognized that fact, because he, as well as other witnesses for the defendant, testify that the car could not pass the wagon and that the plaintiff was requested to move his wagon, so as to allow the passage of the car, but that he (the plaintiff) acted so carelessly in making the change that his act really caused the injuries complained of. Of course, this testimony was contradicted by the plaintiff and his witnesses, who stated that no warning was given of the approach of the car and that they were not aware of its presence until it ran against the plaintiff’s wagon (he being on it unloading it), throwing him to the ground and injuring him so seriously that he was confined to the bed and house for several months. If, as stated by the defendant’s witnesses, the plaintiff’s wagon was partially over and upon its tracks, the driver of the defendant, being aware of that fact, should have notified the plaintiff of his wish to pass. Then the plaintiff had the legal right to unload his wagon, taking only a reasonable time to do so> and until the lapse of such a period the defendant’s driver should not have attempted to pass. The plaintiff had a right to unload his wagon as he was attempting to do in this instance. Apparently he was exercising this right in a careful and prudent manner. The space between the curb and the track was very narrow and the plaintiff could not unload unless his wagon overlapped a part of the public highway occupied by the defendant’s track. The latter had no exclusive right to the roadway occupied by its tracks. It had the right to run its cars, but the plaintiff had also the right to pursue his business as an expressman. Each one was bound to exercise their respective rights in an ordinarily careful and prudent manner. As we read the record, we think that the plaintiff was injured solely through the gross negligence of the defendant, and that the plaintiff was free from contributory negligence. The defendant’s driver evidently thought that he could pass plaintiff’s wagon in safety. In so thinking he erred and the consequences of such error must be borne by the defendant.

The verdict, we think, was reasonable and believe that there is no reason for setting it aside. It is, therefore, affirmed, with costs.

SOHÜCHMATT, J., COUCUTS.

, Judgment affirmed, with costs.