124 N.Y.S. 1043 | N.Y. App. Div. | 1910
The plaintiff has recovered a judgment in the Municipal Court for sixty-four, dollars and twenty-five cents damages and twelve dollars costs in an action for injuries to his wagon and contents in a collision between a wagon owned by the codefendant Schenker and a car of the defendant the Brooklyn Heights Railroad Company. The plaintiff is a furniture dealer, and on the occasion of the accident his horse and wagon", with a consignment of furniture, was drawn up near the curb in front of his store on Myrtle avenue, Brooklyn. Just in the rear of the plaintiff’s wagon a horse and wagon owned by the codefendant Schenker was drawn up near the curb, and the driver crossed the street to deliver a package. Returning, the driver • of Sclieuker’s wagon got on the vehicle and started to drive around the plaintiff’s wagon. He had just reached a point where the front wheels of his wagon were passing over the near rail of the defendant’s, street surface railroad, when his rig was struck by a wrecking car of the defendant, and'his wagon was forced against the wagon of the plaintiff, and the latter was pushed some seven or eight feet against an awning pole, resulting in damages to the wagon and contents. The plaintiff’s evidence is to the effect that at some time just previous to the accident, and while the driver of Sclienker’s wagon was delivering the package across the street, the defendant’s wrecking car was seen approaching about two hundred feet away; that Schenker’s driver returned, got on his wagon and turned toward the track to drive out; that at this time the defendant’s wrecking car was about fifty feet away, and that it was running “ pretty fast ” and was not sounding any gong or giving other warning. It does not .appear that at the time the car was fifty
The judgment, in so far as it holds the defendant railroad company liable for damages, should be reversed and a. new trial granted, costs to abide the event.
Jenks arid Carr, JJ., concurred; Hirschberg, P. J., and Rich, J., dissented.
Judgment of the' Municipal Court, in so .far as it holds the defendant railroad company liable for damages, reversed, and new trial ordered, costs to abide the event.