#### William McGrath, Appellant, *v.*The Metropolitan Street Railway Company, Respondent.

(Supreme Court, Appellate Term,

April, 1905.)

Negligence — Degree of care required of street cleaner — Evidence requiring submission of case to jury.

The rule as to the degree of care required by a public servant, removing dirt from a street, in watching for approaching street railway cars is not so broad as in the case of pedestrians.

The evidence in an action by an employee in the street cleaning department of the city of New York against a street railway company for personal injuries resulting from a collision between an ash cart then under his control and1 one of defendant’s cars, while engaged in his duties of removing dirt from the street, considered, i and held sufficient to require the questions of defendant’s negligence and of plaintiff’s contributory negligence, to be submitted to the jury and that a dismissal of the complaint at the close of the plaintiff’s case was error.

Appeal by the plaintiff from a judgment entered in the City Court of the city of New York, dismissing the complaint.

*105G. Washbourne Smith, for appellant.

H. A. Robinson (Bayard H. Ames & F. Angelo Gaynor, of counsel), for respondent.

Greenbaum, J.

Plaintiff, an employee of the street cleaning department of this city, while engaged in his duties of removing .dirt from the street, sustained injuries resulting from a collision between the ash cart, which was then under his control, and one of the cars of the defendant.

It is not disputed by the respondent that the testimony adduced by the plaintiff would have justified the submission of the question of defendant’s negligence to the jury.

It is, however, contended that the plaintiff did not establish his freedom from contributory negligence, and that as a matter of law, the trial court rightly refused to submit the question to the jury.

The accident happened on Fifty-third street between Eighth and Ninth avenues, on February 19, 1895; at that time there were two tracks on the street, one for east-bound and the other for west-bound cars; the east-bound track was used by cable cars, going south on Ninth avenue and turning easterly at Fifty-third street, and there was a distance variously stated as from six to seven feet or more between the southerly curb and the southerly rail of the easterly track. The cart driven by the plaintiff was about four and one-half to five feet wide. Plaintiff testified that. at the time of the accident his horse and cart were standing on the southerly side of the street, about fifty feet east of the east end of the curve of the track which comes from Ninth avenue around into Fifty-third street; that the horse was facing west; one of the wheels of the cart was on the lower rail of the east-bound track; that there was a pile of rubbish on the street at the place where his cart was stationed; that he was not obliged to remove this pile of rubbish, but that it prevented him from getting close enough to the curb to leave a clear space between his cart and the railroad track; that before placing his cart in the position indicated, he looked for an approaching car and permitted it to pass, and that *106no car was then in sight; that it was his duty to remove dirt or mud from the street and that whilp engaged at the tail-end of his cart in! shoveling mud into the cart he did not observe the approach of a car from Ninth avenue because of his position at work and of the obstruction of his own cart, with the result that he was knocked down by his cart and 'with consequent injuries to his lip and arm.

Plaintiff was corroborated by a witness, .that the pile of rubbish and bricks on the street near the cart, prevented him from getting his cart close to the curb.

Upon this evidence and proof sufficient to require the question of defendant’s negligence to b.e submitted to the jury, the defendant moved for and secured at the close of plaintiff’s case a dismissal of the complaint.

I do not think that this motion should have been granted. The question of plaintiff’s contributory negligence in this case was one for the jury.

The plaintiff was engaged in a public service and waa obliged to work near the railroad track in removing dirt from the street, and the rule as to the degree of care required by such'public servants in watching for approaching cars is not as broad as in the case of pedestrians. Dipaolo v. Third Ave. R. R. Co., 55 App. Div. 566, 568; O’Connor v. Union R. Co., 67 id. 99, 101.

The facts there shown were not such, that it may he said that the court should as matter of law have passed upon the alleged contributory negligence of plaintiff. It was a question for the jury under appropriate instructions to determine that fact, from the proofs as to the care taken by the plaintiff to look out for approaching ears before he placed his cart- in position for work, the condition of the highway at the time when so engaged, and the general situation disclosed at the time of the accident.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Scott and Leventkitt, JJ., concur. \

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