#### LYNCH v. VILLAGE OF NEW ROCHELLE.

(Supreme Court, General Term, Second Department.

May 14, 1894.)

1. Municipal Corporations—Defective Streets.

In an action against a city for personal injuries, it appeared that, while plaintiff was driving along a street through which a railroad track was laid, he turned obliquely across the track to avoid a hole which had washed in the street. The wagon wheel slid along the rail of the track, and the wagon went into the hole, and injured plaintiff. *Held,*that it was error to dismiss the complaint on the ground that plaintiff was negligent.

2. Negligence—Crossing Railroad Track Obliquely.

In driving from one side to the other of a street in which a railroad track is laid, it is not negligence, as a matter of law, to cross the track obliquely.

Appeal from circuit court, Westchester county.

Action by John Lynch against the village of New Rochelle for personal injuries. From a judgment entered on an order dismissing the complaint, plaintiff appeals. Reversed.

Argued before BROWN, P. J., and PRATT, J.

Isaac N. Mills, for appellant.

Calvin Frost, for respondent.

BROWN, P. J.

This action was to recover for personal injuries received in being thrown from a wagon while driving in the defendant village, and which were alleged to be due to a defective highway. The complaint was dismissed, on the ground of the plaintiff’s negligence. The condition of the highway was not contested, and there *963was ample evidence from which the jury might have found that its defective condition was due to the defendant’s neglect. I am of the opinion that the case was, in all its aspects, one for the jury, and that the court erred in dismissing the complaint.

The accident occurred on Washington street. There was a railroad track through the street, and upon the north side, for 100 feet from Webster avenue, there was a covered drain, having its eastern end open for the water to enter it. The road descended towards the mouth of this drain, and near to it the water ■which flowed down the street in large quantities had washed out a large part of the street between the track and the north sidewalk, making a deep hole. The plaintiff was in a one-horse buggy, in company with a lady, who was driving. They were upon the north side of the street until they reached a point near the washout, when they attempted to cross the track in a diagonal direction. The left front ■wheel slid along the track, and the wagon went into the hole, upsetting it, and throwing the plaintiff and his companion out, and inflicting injuries which were the subject of this action. The horse at the time of the accident was upon a walk, and I fail to see how, under the circumstances, any lack of care is imputable to the driver. There is nothing to indicate that she was not a competent person. The plaintiff said she had horses of her own, and was accustomed to and knew how to drive. The fact that she sat upon the left hand side, opposite to the hole, is not necessarily evidence of negligence. Under a rule requiring travelers meeting on a highway to turn to the right, that is regarded by many persons as the proper side for the driver to sit upon.

It cannot be held to have been negligence in law to have attempted to cross the track in a diagonal direction instead of at right angles. That was a question of fact which the jury should have been permitted to pass upon. The judgment should be reversed, and a new trial granted, with costs to abide the event.