Opinion
January Term, 1900.
Edwin T. Taliaferro, for the appellant.
Alfred Lauterbach, for the respondent.
The action was brought to recover damages for injuries suffered by the plaintiff because of a collision between the wagon on which he was riding and a car of the defendant. The evidence would have warranted the jury in finding that the plaintiff, seated in a grocery wagon, the back and sides of which were inclosed by oilcloth curtains, was driving along White Plains avenue in the city of New York. The defendant's track was laid in the center of the street. Each side of the street was either out of repair or incumbered with rubbish, so that the passable part of the roadway ran so close to the defendant's track that the wheel of the plaintiff's wagon nearest the track was only about a foot from it. As he was driving in that place, a trolley car of the defendant's came up rapidly from behind without any warning, struck the wagon in which the plaintiff was sitting, threw it over, and inflicted serious injury upon him.
At the conclusion of the plaintiff's evidence, which tended to establish the foregoing facts, the complaint was dismissed by the trial court. This is clearly error within the principles established in the case of Rooks v. The Houston, West Street Pavonia Ferry R.R. Co. ( 10 App. Div. 98).
A few of the rulings of the court with regard to the admission of evidence, which were excepted to, were erroneous, but in view of the conclusion we have reached as to the merits, it is not necessary to consider these separate rulings.
The judgment and order must be reversed and a new trial granted, with costs to the appellant to abide the event.
VAN BRUNT, P.J., PATTERSON, O'BRIEN and INGRAHAM, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.