This is an action for damages- for. the-alleged, negligence of the. defendant; The ti-ial.judge dis- ' missed .the complaint because of the plaintiff’s contributory negligence and the- defendant’s freedom from negligence. ; .
. The - examination of the evidence shows that plaintiff and three other persons- were driving' down town along the Southern boulevard in this city1. '
. .That while driving across Boston - avenue, along, which: defendant’s' cars run, .and when the.horse’she.ad was about ten feet away from the westerly rail-of the south-Lotind track, 'they saw one of the defendant’s cars going north and about-200' yards away from them . towards the south ; that they ' - continued on, the horse being' on a dog trot,. and when their horse and part’of the wagon had crossed'over the northbound track, the. rear .wheel of the wagon was struck by -said north-bound car, and plaintiff was thrown out of the ivagon and injured. This state of facts was sworn to' by several-.' witnesses. ■ •'.. . .. ■ ■' • . -'. ' '
The plaintiff certainly had a Tight to cross -the defendant’s-tracks and defendant had a right to usé its tracks for’ ordinary street car uses; both were required to exercise their respective- ■ rights in a careful and prudent manner, and. whether or not they were: doing so - in this instance, .it seems -to me,, after-*443reading' the appeal record, was a question for the jury to determine. To say, as a matter of law, that the driver of a vehicle who is within, say, five yards of a street railroad track in this city ,is guilty of contributory negligence in attempting to cross the same, because the nearest car to him is 600 feet away, is.carrying that doctrine of the law too far.
I can find no precedent which justifies such conclusion.
The facts and circumstances of a particular case might justify a jury in so holding, but I think it error to so hold as a matter of law. ' .
I therefore think it was error to dismiss the complaint upon the ground of plaintiff’s alleged contributory negligence; as to defendant’s negligence it also, seems to me that that question should have been submitted to the jury, and it was error to refuse to do so.
The judgment must be reversed, a new trial is ordered, with costs to the appellant to abide the event of action.
Oonlan and MoCabthy, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.