The counsel for the appellant seeks a reversal in this case only on two grounds: First, that the evidence showed contributory negligence on the part of plaintiff ; second, that there was no proof of negligence of the defendant. The plaintiff drove a beer wagon in a southerly direction along the track of defendant on Third avenue in this city until he reached Thirty-second street, where he swung his wagon to the east, in order to get out of the track, and then turned to the west. The wagon was nearly off the track when an electric car struck the hind wheel and overturned it.
This case was properly submitted to the jury. It was the *288duty of plaintiff to turn off seasonably to avoid the ear approaching from the rear, and, while so doing, the motorman was bound to exercise proper care to avoid a collision with the wagon. Whether the plaintiff was guilty of contributory negligence, and whether the motorman was negligent, were questions of fact for the jury. Quinn v. Atlantic Avenue R. Co., 12 N. Y. Supp. 223; affirmed, Court of Appeals, without opinion, 134 N. Y. 611.
Judgment and order denying new trial affirmed, without costs.
Osborne, J., concurs.
Judgment and order denying new trial affirmed.