I think the court should have charged at the defendant’s request that the defendant had at the point of the accident the paramount right of way. The plaintiff with his express wagon was preceding the defendant’s car, at all times, however, between the rail and the curb, until at the point in question, where a delivery wagon stood at an angle to the curb and forced the plaintiff to go further toward the track, if not actually upon the track, in order to pass by. The plaintiff’s claim is that the car struck the left rear wheel of his wagon. The defendant’s claim is that the car did not strike the wagon, but struck a trunk which was leaning over the edge of the wagon, which, if true, would indicate that the wagon was not upon the track, but was some distance from the track toward the curb at the time of the collision. That a street car has the paramount right of way upon a highway between crossings is not questioned. The motorman might assume that the plaintiff had knowledge of this right and would so drive as to avoid collision. This the jury had the right to know in determining whether the motorman upon the street car was guilty of negligence in assuming that he might pass the plaintiff without striking him; and the defendant had the right to have the jury so instructed.
Judgment and order affirmed, with costs.