The driver of the horse owned by the plaintiff was proceeding through Harrison street, with a view to cross Hudson street, so as to get into Worth street.
The defendants had a freight car, the box of which was forty feet long, and as high as the dummy engine which caused the mischief, standing on the west side of the track.
The freight car was standing on a hill, while the dummy came up from a plain, and a man standing on a cart crossing from Harrison street could not see the dummy.
This, I think, is a fair statement of the evidence1.
Whether the driver of the horse looked down Hudson street, or not, is somewhat doubtful on his own testimony, as he first swore that he did and afterward that he did not. Whether he did, or not, therefore, was not clear or certain, but was a question of fact to be decided by the jury.
Be that as it may, whether the driver looked “ straight *78ahead,” crossing from Harrison street, which would be directly across Hudson street, or whether he looked down the latter street, seems to me, under the circumstances of this case, quite immaterial. The defendants had placed in the street such an obstruction that the driver could not see if he had looked, and I think he can not be charged with negligence in not attempting to do that which the act of the defendants had rendered impossible.
The defendants had no right to obstruct the highway by keeping the freight car standing on the track. Doing so was an act of negligence on the part of the defendants.
I think the judge properly refused to dismiss the complaint, and that he correctly submitted the case to the jury.
Judgment affirmed.