I think that the principle involved in Barry v. N. Y. C. & H. R. R. R. Co. (92 N. Y. 289) and in Byrne v. N. Y. C. & H. R. R. R. Co. (104 id. 362) is applicable to this case, and that the case of Keller v. Erie R. R. Co. (183 id. 67) is not in any respect analogous.
The Barry and Byrne Cases {su/pra) involved accidents at crossings of- a steam railroad which the defendant had for many years suffered the. public to use. In the case at bar we must assume (the plaintiff was nonsuited) that the accident occurred at a place which was used as a public street to the knowledge of the defendant. The place was known as Railroad avenue, and while the plaintiff’s counsel was showing by a witness that the place was used as a thoroughfare the court interrupted the examination with the statement, “ your client was clearly there by consent.” A platform had been built, partly by the defendant and partly by the plaintiff’s employer, between the defendant’s tracks and the brewery, and the plaintiff’s employer had paid the defendant rent for the use of a part of said platform, and I think the evidence warrants the conclusion that he was paying rent for some part thereof at the time of the accident. The plaintiff had been accustomed to use this platform, as he was using it at the time of the accident, for three years, and the plaintiff’s employer had been in the habit of using it for thirteen years. The plaintiff, then, was more than a mere licensee casually upon the defendant’s premises. He was rightfully, with the knowledge and consent of the defendant, in a place which in appearance and use was a public street and where the defendant knew that he or others were likely to be.
There was evidence from which a jury might find that the defendant was negligent. The defendant’s motorman was in the *420motor box on the rear car of a five-car train, where he could not see objects with which his train might collide. The. situation is not the same as though the train was being backed up in the defendant’s railroad yard. I think, as' between the plaintiff and the defendant, Railroad avenue should be regarded as a public street, and the defendant, knowing that people were liable to be upon its tracks, was under a duty to manage its trains with reference to that knowledge. It may be inferred that the motorman would have seen the dangerous proximity of the plaintiff’s wagon to the track had he been in the front car, because a man in the front car perceived the danger of a collision and unsuccessfully attempted to ■ warn the motorman.. The defendant could not assume that people using Railroad avenue would at all times be out of the way of its trains. It was necessary for the plaintiff and his coservants to : drive upon the tracks in order to back the wagons around to be 'unloaded. The defendant knew this and, of course, knew that a train might suddenly come - upon one of. the men before he could get his horse and wagon off the track. I do not think the defendant could run its trains . through Railroad avenue without any regard whatever’ to the knowledge which' it had of the use of Railroad avenue by the public and particularly by the plaintiff’s employer.
It cannot be said as a matter of law that the • plaintiff wa's guilty of contributory negligence. He had cramped' his wagon so. that, as he supposed, the horse and wagon, were in a position of safety. The fact that he did not make further observation during the ten minutes before the accident does not warrant a holding that he was negligent as matter of law. Either the plaintiff was mistaken in judgment, or by a slight movement of the horse the wheel had been turned too near the track for safety, but a mistake in judgment is not negligence, and I do not think that one can be said to ■ be negligent as matter of law for continuing work in a place which he supposed after making'observation to be safe. It seems to me that on this branch of the case the evidence is much more favorable to the plaintiff than was the evidence in the case of Black v. Staten Island Electric R. R. Co. (40 App. Div. 238). In that case the plaintiff supposed that his wagon was in- a position of safety, but did not look to see; but it was held that the question of his negligence was for the jury. This is not like the case of *421Volosko v. Interurban St. R. Co. (190 N. Y. 206). In that case the plaintiff was working where he knew he would be hit by an approaching car, and made no observation whatever to discover the approach of the car.
We think there was sufficient evidence on both questions to take the cake to the jury, and that it was error to nonsuit.
Jenks and Rich, JJ., concurred; Woodward, J., read for affirmance, with whom G-aynor, J., concurred.