This action is brought to recover damages for injuries to property caused by the negligence of defendant in operating its railroad on Columbus avenue.
*623The plaintiff’s driver testified that, on September 20, 1905, at about eight o’clock at night, he was driving a one-horse covered wagon, unloaded, through One Hundred and Seventh street; and, as the rear wheel was passing the east rail of the east track, it was struck by a northbound car at Columbus avenue. He says he was coming out of One Hundred and Seventh street and looked to see if he saw a car. He could not see any and continued on, driving across the west roadway, across the southbound track, the intervening space and on the northbound track; and while crossing the northbound track the car struck'his vehicle.
He further testified that he never saw the car, was not even aware of its approach, until it struck his wagon and upset him. He admitted, on cross-examination, that he had an unknown woman in the wagon with him. The wagon was caught between the front of the car and an elevated pillar. The only other witness called by the plaintiff was an officer, who testified that he was not present when the accident happened.
The defendant called three witnesses, including a police officer who was present and saw the accident. He it was who first brought out the fact that the driver of plaintiff’s wagon was accompanied by an unknown woman. He further testified that the plaintiff’s horse was moving at a slow jog and that, when the horse and wagon appeared on the northbound track, the car was perhaps twenty feet away. He heard the motorman shouting and observed him putting on his brake.
The evidence wholly failed to show freedom from contributory negligence on the part of the plaintiff; and, as it has been said in this court (Hebron v. New York City R. Co., 94 N. Y. Supp. 342), “unless the rule that there must be proof of freedom from contributory negligence on plaintiff’s part is to be disregarded, this judgment cannot stand.”
Scott and 0’Gorma.h, JJ., concur.
Judgment reversed and new trial granted, with costs to appellant to abide event.