Opinion
February, 1900.
Henry A. Robinson, for appellant.
George W. Gibbons and D.T. Kimball, for respondent.
The plaintiff, while driving westerly along the west-bound track of defendant's line, on Twenty-third street, between 10 and 11 o'clock at night, was overtaken by one of defendant's cars which struck his wagon, injuring it and the horse, and for these injuries the plaintiff brought this action. According to his own testimony, he had driven along that track for some 300 feet, was familiar with the locality and knew that cars were passing and repassing there very frequently. His use of the track was liable to a lawful interruption from a party having the right to an unobstructed way, and exercising that right for the public good in part. It was his duty not only to avoid collision, but also to cause no needless delay to the defendant, and he might not wait to hear a signal of the approach of a car, but he had needs at intervals to look backward for it. Adolph v. Central Park, N. E.R.R. Co., 76 N.Y. 530, 537. This he did not do, and so the judgment in his favor must be reversed.
FREEDMAN, P.J., concurs; LEVENTRITT, J., taking no part.
Judgment reversed and new trial ordered, with costs to appellant to abide event.