This is an appeal from a judgment of non-suit against the appellant on a trial before the court and a jury, and from an order denying a motion for a new trial.
The action was brought to recover damages for personal injuries sustained by the appellant in consequence of a collision between a wagon he was driving and a team of the respondent driven by one of his employees on Eighth avenue near Fifty-seventh street on the 14th day of March, 1892, whereby appellant was thrown out and seriously hurt.
Plaintiff was driving north on the east side of Eighth avenue, close to the curb, on a walk, with a single horse and wagon laden with milk bottles. Next to him, going in the same direction, *218was another single team driven hy the witness Floefer, also on a walk. Hoefer’s wagon was laden with twenty bags of potatoes, weighing 180 pounds each. Defendant’s wagon was in the rear, going in the same direction, driving at a gallop. As all of them approached Fifty-seventh street, defendant’s team, in an effort to cross in front of plaintiff’s and Hoefer’s teams, was violently driven into Hoefer’s team, causing Hoefer’s team to swing into and against plaintiff’s team, driving it against the curb, upsetting it and throwing plaintiff out, inflicting the injuries for which the action is brought.
The street was unobstructed and wide enough to allow defendant’s team to pass both Hoefer’s and plaintiff’s teams in safety, if carefully and properly driven.
At the close of plaintiff’s evidence the complaint on motion was dismissed, on the ground : First. That the plaintiff had not shown himself free from negligence. Second. That there was no evidence of defendant’s negligence.
After a careful consideration of the evidence I am convinced that the defendant was the first and primary cause of this injury and in driving in the manner testified to was guilty of negligence. The plaintiff, being on the right-hand side close to the curb and there being no obstruction on the street, could do no more than he had done, and was free from negligence. Besides, the defendant had ample room without disturbing or interfering with the plaintiff.
This was clearly a case for the jury to determine, and the court erred in taking it from the jury and dismissing the complaint.
Judgment is, therefore, reversed and a new trial granted, , with costs to the appellant to abide the event.
Ehrlich, Oh. J., and Yah Wyck, J., concur.
Judgment reversed and new trial granted, with costs to appellant to abide event.