The'verdict in this action is against the evidence. The plaintiff testifies that he was driving slowly in an-easterly.direction on Ninety- ■ sixth street a-heavily loaded ivagon containing laundry material, and on approaching Third avenue he looked up and down and saw a car on the avenue at Ninety-fifth street; that he attempted to cross the '■ avenue and had nearly passed over the easterly or north-bound track when his wagon was struck on the rear wheel and lie' was thrown out and sustained serious injuries. He called no other" witness to the occurrence but a fellow^employee' of his who arrived on the scene ■ immediately after the accident, saw the wagón and testi- • tied that the rear wheel was broken or damaged,, but he did not examine the front'wheel. . .
■ .The defendant called four witnesses. One of them (Grandon) . was a spectator of the accident; He was at the northeast corner of Ninety-sixth street and Third avenue, and while standing there he saw’the plaintiff’s wagon a few feet west of the west line of Third avenue. The car was then at the south crossing -of Ninety.sixth street; -the plaintiff was going very fast.; the motorman was apply- - ing the break and the ’ collision occurred because the motorman , could not .stop in time..". The motorman says that he saw the plaintiff near the westerly line of Third avenue and the car was. then about three feet south of the south " crossing; that the plaintiff dro'v.e right ahead and the motorman could not stop the car. The testimony of the conductor, só far as it goes, corroborates the statement of the motorman, but there was a woman passenger (Moroñey) on the car; who .testified that when the car was ten- or seventeen or twenty feet from the. south crossing she saw the plaintiff about ten feet away from the north-bound track and that he was driving fast.
1 -The evidence is clearly preponderating to the effect that the car was near the south crosswalk of Ninety-sixth street when the plaintiff Was at the west line of that-street.; that he was driving fast and attempted to cross in front of the car which was slowing down ; that the; motorman was ringing his bell and all reasonable precautions were taken to prevent a collision with the plaintiff’s wagon.
*155The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Ingraham, McLaughlin, Laughlin and Clarke, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event. Order tiled.