#### WARD v. NEW YORK & H. R. CO.

(Supreme Court, General Term, Second Department.

June 18, 1894.)

Street Cars—Injury to Person on Track—Evidence.

Where the evidence in an action against a street-railroad company for injuries caused by defendant’s car colliding with a wagon driven by plaintiff’s intestate is conflicting as to whether the car struck the wagon while it was turning out from the track, or whether the wagon was suddenly driven on the track in front of the car, defendant’s negligence is a, question for the jury.

Appeal from circuit court, Kings county.

*785Action by Julia Ward, administratrix, against the New York & Harlem Railroad Company. The complaint was dismissed, and plaintiff appeals.

Reversed.

Argued before BROWR, P. J., and DYKMAH and CULLER, JJ.

Grout, De Fere & Mayer, for appellant.

Rodman & Cogswell, for respondent.

CULLEN, J.

This is an appeal from a judgment in favor of the defendant entered on a nonsuit at circuit. The action was for causing the death of plaintiff’s intestate. The complaint was dismissed at the close of the whole evidence. We think this disposition of the case was erroneous. The deceased was killed by a collision on Centre street, Rew York, between a wagon he was driving and one of the defendant’s cars. There were but two witnesses called to testify as to the occurrence,—one for the plaintiff (a bystander), and the other for the defendant (the driver of the car). According to the testimony of the first witness, the vehicle of the deceased was in the railroad tracks, about 10 feet in advance of the car, both proceeding in the same direction. The deceased started to turn his wagon out of the tracks, but before he had wholly accomplished this object the car collided with his rear wheels. According to the evidence of the driver, the wagon of deceased was alongside of the curb, and between the tracks and the sidewalk; and as the car was proceeding on its route the vehicle was suddenly driven across the front of the car, the driver in vain endeavoring to stop the car in time to avoid the collision. If the driver’s testimony be true, there was no negligence on the part of the defendant. But, if the testimony of the plaintiff’s witness be credited,—that the deceased was driving in the track,—there was a question of negligence on defendant’s part, to be submitted to the jury. The right of the defendant to the path of its tracks was only paramount, not exclusive. Fleckenstein v. Railroad Co., 105 N. Y. 655, 11 N. E. 951. Vehicles traveling the streets had the right to drive along the tracks; respecting, however, the paramount right of the railroad cars, and using reasonable diligence to turn out of their way. The driver ■of the car was bound to give the driver of the vehicle a reasonable ■opportunity to get off the track, and not to run him down. If this, therefore, was the case of a “rear-end” collision, it was certainly for the jury.

The defendant contends that the testimony of the driver of the car that the deceased was driving across the front of the car was uncontradicted. We think not. The driver testified that he saw the wagon of deceased 25 feet in front of the car. The bystander says that'he saw the deceased driving in the line of the car, 10 feet in front of it. The evidence of the driver, therefore, goes back of the time when the other witness first observed the deceased; but it might very well be argued that if the deceased started to cross in front of the car, at a distance of 25 feet away, he could not be found, at a* distance of 10 feet away, driving in the line of the track. The evidence presented a question of fact,—whether the *786collision occurred as the deceased was driving across the track, or when he was turning out of the tracks. The judgment appealed from should be reversed, and a new trial ordered; costs to abide the event. All concur.