#### Frank E. Ludecke, Appellant, *v.*The Metropolitan Street Railway Co., Respondent.

(City Court of New York, General Term,

October, 1900.)

Negligence — Surface ears have, in city streets, no greater rights than vehicles.

Where the evidence in an action predicated upon the negligence of a street surface railway company tends to show that a street car was nearly a block away when the plaintiff’s driver attempted to cross the track, and that, although the wheels of his wagon became caught in the track and somewhat retarded his progress, the person in charge of the car permitted it to collide with the wagon without giving any warning, a dismissal of the complaint is erroneous, as the matter should be submitted to the jury, the rule being that surface cars have no superior rights in the streets and avenues of a city over any other vehicle.

Appeal from a judgment for the defendant, entered upon a dismissal of the complaint at a Trial Term at the close of the plaintiff’s case, and from an order denying a motion of the plaintiff for a new trial.

Black, Olcott, Gruber & Bonynge (Franklin Pierce, of counsel"), for appellant.

Henry C. Robinson (John T. Little, of counsel), for respondent.

Conlan, J.

The action is for negligence in the alleged killing of the plaintiff’s horse. The evidence of the plaintiff is to the effect that the horse and wagon were being driven on the down track on Columbus avenue, in the city of New York, following a car going south, that, when between Eighty-seventh and Eighty-*636eighth streets, and near Eighty-eighth street, the driver saw a car on the up track, standing at Eighty-seventh street crossing, that, in endeavoring to cross to the east side of the avenue, one of the wheels of his wagon became caught in the track and somewhat retarded his progress, and that, without warning of any kind from the person in charge of the car on the east track, which had then begun to move north and before he had crossed to the up-track, the car collided with the horse and fore wheel of the wagon, and thus caused the injury complained of.

The rule is well settled that surface cars have no superior right upon the streets and avenues of a city over any other vehicle. In the case of Lawson v. Metropolitan Street R. Co., 40 App. Div. 307, the court said: *“*The question in every case is: Had the approaching parties, the car driver on the one hand and the person crossing the track on the other, used the ordinary care of reasonably prudent persons to avoid a collision under the given conditions? * * * In the nature of things that question must always be submitted to the jury.” In the case cited the moving car was fifty feet away and in rapid motion when the driver turned his team upon the track, and the court in this connection said: *“*When one attempts to cross the track of a street car, and has approached the track at such a distance from an approaching car that he has reasonable ground to suppose he will be able to cross the track, it is the duty of a street car driver to give him a reasonable opportunity to cross, and if, for that purpose, it is necessary for him to check the speed of his car, or even stop the car entirely for a short space, it is his duty to do it, and the person crossing the track has the right, without being charged with contributory negligence, to assume that that duty will be performed.” Citing Kennedy v. Third Ave. R. R. Co., 31 App. Div. 30. We think the cases are parallel, and that there was error, in taking the case away from the consideration of the jury, which calls for a reversal.

Judgment and order reversed and a new trial granted, with costs to the appellant to abide the event.

Fitzsimons, Ch. J., concurs.

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