(dissenting):
“ It is no defense to a suit for damages in a collision that the plaintiff was at the time in a place where he ought not to have been, if the collision could have been avoided by the defendants in the *624exercise of the ordinary prudence which belongs to a good business man in his particular sphere.” (Wharton Neg., § 329 ; Kenyon v. N. Y. C. and H. R. R. R. Co., 5 Hun, 479.)
If plaintiff’s wagon had been standing directly across the track, even though it ought not to have been there, the defendant would not have been justified in driving the car upon the wagon, if this could have been avoided by ordinary prudence.
Now it appeal's that plaintiff’s wagon was standing so near to the track that the car could not pass. 1 think it was a question for the jury to say whether the act of the driver was wanton, and whether, by ordinary prudence, the collision could have been avoided.
Judgment and order affirmed, with costs.