The proof, as it appears in this record, was of such a character as to require the submission of the issues of negligence and contributory negligence to the jury. There is a feature of the case to which prominence was given and in respect of which the court properly instructed the jury, and that feature is presented by the claim of the defendant that the accident from which the plaintiff suffered was an unavoidable one. The circumstances connected with that accident are the following:
The -plaintiff, a boy about fifteen years of age,, with another lad was riding on the rear of a truck being driven on Third avenue in the city of New York. They got upon this truck at *29about Twenty-ninth street. It was proceeding in a northerly direction on the easterly track of the defendant’s line of railway. The vehicle on which they were riding had proceeded as far as between Fifty-first and Fifty-second streets. The plaintiff was sitting on the rear of the truck with his legs hanging down. The truck was followed by one of the defendant’s cars which (at Fifty-first street)' one of the plaintiff’s witnesses places at a distance of about thirty feet from the rear of the- truck. The motorman of the car rang his bell as a signal to the driver to turn out from the track, which the driver attempted to do, but before the rear wheels of the truck left the track the car ran into it, struck the plaintiff’s leg and injured it severely. The contact of the car with the truck was at a point near Fifty-second street: The testimony of the plaintiff was to the effect that he made an effort to lift his leg and get., into a secure place on the truck, but before he could do so he was struck. The motorman in charge of this car, for some undisclosed reason^ was not called as a witness, but there is testimony of other witnesses which raises a distinct conflict as to the situation of the plaintiff and his ability to avoid the accident. The plaintiff states that when the bell of the car started to ring he was trying to lift' up his leg to avoid the possibility of injury; that the car was.about fifteen feet away — that is, when the bell began to ring the car was about twenty-five feet away, and when he started to lift his leg the car was about ten feet away; that he meant that the car had gone about fifteen feet from the time the bell began to ring until he began to lift his leg; that the car was proceeding at full speed. He also testified that the car was about twenty-five or thirty feet away when the driver of the wagon first started to pull his horses out, and that the car was then-coming full speed. The inference from this testimony is that the plaintiff was watching the approach of the ear and that he attempted to lift his- leg when he saw the car was a certain distance from him, but that the speed of the car was so great he could not succeed in doing so before contact with the car took place. Another witness called by the plaintiff testified that he was riding on the car; that near Fifty-second street, about fifteen feet distant from the wagon, the motorman rang his bell, the driver of the wagon turned to the right, to the east side, and the car was coming very fast and struck the child, who was seated on the rear *30of the wagon; that the rear wheels were on the track, or rather , that the wheel on the west side was on the track. The boy who accompanied the plaintiff testified that he was seated on the east side of the truck,-and that when the car was “ a house and a half” away from the wagon the car bell began to ring ; that the plaintiff lifted up his right foot and wanted to lift up his left foot when the car ran-into the wagon and smashed his foot. The defendant called as a witness the driver of the truck, who stated that his vehicle was on the east side of the track of the defendant’s road about forty feet-froth the corner of Fifty-second street when it was struck by the car. He heard the motorman ringing the bell, and he turned around in the middle of the block and said- to the motorman, “ take your time, and when I get a chance I’ll pull out.” He did turn out in the middle of the block; he did not see the boys on the tailboard ; he pulled out his team, and' as he did so the near side horse slipped and fell, “ and no more than he fell,, a couple of seconds, the ^ car struck the tail end of my truck and pushed the horse maybe a foot or two, and then I stopped and blocked the road until I could get my horse up.” It was that striking by the car that hurt the boy. He also testified that when his horse slipped and fell it had no effect on the truck or on him, but it had effect with respect to the stopping of- the wagon, and he said, “ of course when the horse fell the wagon stopped suddenly, and I think only for that the car would never hit the wagon.” A policeman who saw the accident also testified on behalf of the defendant that he ,saw the plaintiff “ sitting on the tail end of the wagon with his legs hanging down and the car had almost cleared the truck when the horse stumbled, and the car was so close — it was within five feet of the truck going very slowly — and before the gripman could put on the brake the car slid up and struck the wagon on . the corner' and hit the boy on the leg.” This officer was riding on the . car which collided with the wagon. Another witness, who was also on the car, said that he saw the horse fall, and that it fell before the car struck the wagon. The plaintiff testified that the horse did not fall until after the wagon was struck.
Upon the whole evideiice the court charged the jury that if they believed that the accident was an unavoidable one, caused by the falling of the horse, “ your verdict cannot be against the com*31pany.” That was as favorable an instruction as the defendant was entitled to.
As the jury have found for the plaintiff, it is evident that they did not believe that the accident was caused by the falling of the horse, but was the result of the contact of the car with the truck, and, therefore, they must have proceeded to inquire further as to the negligence of the motorman, and they evidently found that 'that negligence consisted in the motorman allowing the car to proceed at such a rate of speed behind this truck, attempting to leave the track, that the car could not be stopped in time to avoid a collision before the rear wheels of the truck left the track.
There was enough to go to the jury upon that subject, and it was also for the jury to say, under the circumstances, whether the plaintiff was himself negligent in failing to put himself in a place of safety on the truck in time to avoid the accident.
The judgment and order appealed from should be affirmed, with costs.
Hatch and Laughlin, JJ., concurred; Van Brunt, P. J., and Ingraham, J., dissented.