The plaintiff, a boy fourteen years of age, on the 14th of May, 1898, was riding on a truck. He got on this .truck at Twenty-ninth street and Third avenue. The truck proceeded up Third avenue upon the east track of the defendant’s road, turning out to allow the cars to pass. When the truck reached Fifty-first street a car came up, ringing its gong for the truckman to get out of the way. The plaintiff testified that when the gong on the car was rung it was about one and a half houses, about thirty feet, from the truck that the driver started to turn his horses off the track; that when he saw the car would not stop, then he tried to “ pick my legs up; ” that he had pulled up one leg and was about pulling up the other when it was caught between the car and the truck; that the truck was almost off the track, and that the time that elapsed between the time that the bell was rung and the time of the accident was about two minutes. The car was about ten or fifteen feet away when he commenced to lift his legs. There was another boy with the plaintiff about the same age, who was seated upon the truck in the same *32manner. This hoy took up his legs before the plaintiff, and it was because the plaintiff saw his companion pulling his legs out of the. way that he started to do the same. It was conceded that the boy was sui juris. The blow was not sufficient to break the boy’s, leg, and the wagon was not upset or injured. The driver of the truck testified that his truck was a large one with two horses; that the boy was injured about thirty or forty feet from the corner of Fifty-second street; that the horses were walking between Fifty-first and. Fifty-second streets on the uptown track; that he heard the grip-man ringing the bell; that, he turned around in the middle of the block and said to the motofman : “ Take your time, and when I get. a chance I’ll pull out;” that when he got near the corner of Fifty-second street he pulled his team off the track; that the near side horse slipped and fell, and the car struck the tail end of the truck and pushed the horse a foot or two; that the truck then stopped and blocked the road until he could get his horse up; that the fall of the horsé had the effect of stopping the truck, and but for that the car would not have hit the truck; that as he turned his horses otit- of the track he struck his horse with a whip, and as he did so. the near horse fell; that he first heard the bell ring and the grip-man yell at Fifty-first street, and when the car struck the truck he. was within thirty feet of Fifty-second street; that it was not a fact that the slipping of the horse was caused by the car striking the wagon; that the horse slipped before the car struck the truck; that neither horses nor the wagon were injured. A policeman who was riding on the car testified that the car was going very slowly near Fifty-second street; that he then saw the truck which was pulling out from the track on the east side and had almost cleared the track; that the plaintiff was sitting on the tail end of the wagon with his legs hanging down, and when the truck had almost cleared the track one of the horses stumbled and the car was so close it was within five feet of the truck going very slowly; that 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; that the gripman did not, apparently, increase the speed of the car; that the wagon was not pushed forward over two feet and the other horse did' not fall. There was another witness who was a passenger on the car, and who corroborated this testimony of the policeman.
*33Upon this evidence the court submitted the case to the jury, who found a verdict for the plaintiff. The uncontradieted evidence of all the witnesses is that the accident was caused by one of the horses of the truck falling just as the truck was about to clear the track. That the car was running vfery slowly is proved by all the witnesses, except the plaintiff. The blow was a very light one, merely pushing the truck a very few feet, and but for the fact that the plaintiff allowed his legs to hang over the back of the truck, notwithstanding the approach of the car, no injury would have happened.
It was not negligence for the motorman to keep close to the truck to avail himself of an opportunity to proceed as soon as the truck cleared the track.
Upon the whole case I think the plaintiff failed to show that the accident happened from the negligence of the defendant or that plaintiff was free from contributory negligence. The injury was caused by the fall of the horse stopping the headway of the truck, and for this the defendant was not liable.
I think the verdict was against the weight of evidence and that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Van Brunt, P. J., concurred.
Judgment and order affirmed, with costs.