This action is brought to recover damages caused by the defendant’s wagon being run into the plaintiff in the street. The plaintiff is a push-cart peddler. He was standing at his push-cart, which Avas by the curb in the roadway, showing his wares to a customer when the defendant’s horse and wagon, unobserved by the plaintiff, Avas driven into the push-cart by the driver, turning it over and injuring the plaintiff. The learned trial judge dismissed the case at the close of the plaintiff’s evidence.
*697The mere fact that the plaintiff was there selling merchandise out of his push-cart, although it be granted that he was there unlawfully, is not enough in itself, as matter of law, to make out a case of contributory negligence against him. The two things are not synonymous. Nor is negligence in a plaintiff always synonymous with contributory negligence. The plaintiff may be negligent, and yet if his negligence do not contribute to the occurrence, it is not taken into account but passes for naught. A familiar example is the case of one driving in a street car track and a car coming up and hitting him behind. He may be negligent in being there, and yet such negligence may not contribute to the collision. The collision may be willful and intentional on the part of the defendant, and in that case such conduct of the defendant is the sole cause of the collision. It is like a battery. The negligence of the plaintiff does not enter into it at all. In the present case the evidence suffices to have enabled the jury to find that the plaintiff’s unlawful occupation of the street did not contribute to the collision. It cannot be gainsaid that although unlawfully there, the defendant did not have the right to run into him, but owed him the duty of due care, and if disregard of that duty, or lack of such due care, was the sole cause of the collision, the defendant is liable. There was no car, wagon or other obstruction in the street at the time, and no reason why the defendant’s wagon should have come near the plaintiff.
The judgment should be reversed.
Hooker, J., concurred.
Judgment affirmed, with costs.