This suit is to recover the value of an automobile alleged to have been destroyed in a collision with one of defendant’s cars, and attributed to the negligence of defendant’s employee.
The plaintiff, on the occasion in controversy, had, as he usually did .when about to take his family riding, brought his machine from the garage to the crossing near his residence.
The narrowness of the street was such that, in that position, the machine encroached and stood over more than a foot and a quarter of the track, and there was no other way of getting in.
The solution of the case depends upon the fact as to whether the automobile was still or was moving when the collision with the car took place.
The plaintiff and three disinterested witnesses say that the machine stood still, and was, or should have been, seen by the car crew from two squares off; one of the witnesses adds that .the motorneer was conversing with a passenger and did not look until too late to avoid the accident;
The defendant’s witnesses, with the single exception of one who was a passenger and whose testimony is not material, are all railroad employees who say that the automobile was moving toward the car and the col*501lision was due to this and not to any negligence on the part of the motorneer.
June 16, 1910.The District Judge resolved the irreconcilable conflict against the defendant, and we shall not disturb his conclusions.
Judgment affirmed.