The plaintiff, a passenger on one of the defendant’s south-bound cars, was injured by the car colliding with a truck owned by the defendant Biglin. The collision occurred at or near the intersection of Madison avenue and Forty-Second street. The car was about 37 feet in length, and was equipped with two fenders — one in front and one in the rear; the front one at the time being down, and the rear one raised and fastened to the car. The car passed from Madison avenue into Forty-Second street on a curve which commenced over 30 feet north of the westerly curb line of Forty-Second street, and at this point the distance between the westerly rail and the westerly curb line of Madison avenue was a little over 13 feet. The rear of the car, as it passed around the curve, overhung the westerly track considerably more than did the front of it; but at no point was the space between the westerly rail and the westerly curb line of Madison avenue less than 11 feet 4 inches, which is near the commencement of the curve. From this point on, while the overhang of the rear fender increased, the track turns southerly, and by reason of that fact the distance of such overhang from the curb line also increased. At a point slightly north of the crosswalk of Madison avenue, the overhang of the rear fender reached its maximum, which was 48 inches, and it continued in that condition for a .distance of something near 20 feet. At this point there was a space of 14 feet between the fender and the westerly curb line of "Madison avenue. The truck with which the car collided had a width of 8 feet; that is, from hub to hub. It was equipped with a rack, ■upon which, at the time the collision occurred,- were placed several trunks. When the car reached a point a few feet north of Forty-Second street, it was brought to a standstill for the purpose of letting 'passengers get on, after which a signal was given for the car to proceed; and at this time the truck, which was then about the center of Forty-Second street, had commenced to turn into Madison ave.nue for the purpose of taking the trunks to the Manhattan Hotel. 'The car proceeded slowly around the curve. The front of it passed *he truck in safety, but the rear of it, or the fender, struck the truck, *515and displaced one of the trunks, which, in falling, struck a window in the car, and some of the pieces of glass struck the plaintiff in the face, and inflicted the injuries of which she complains. She had a verdict of $1,800 against both the railway company and the owner of the truck, from which the railway company alone has appealed.
The appellant asks for a reversal of the judgment principally upon the ground that the evidence was insufficient to justify a finding to the effect that the collision was due to its negligence. It, having undertaken, for a consideration, to convey the plaintiff to the point of her destination, was obligated to use the highest degree of care, so far as she was concerned, to the end that she might reach there in safety; and whether or not it performed this obligation was, we think, under the facts presented, a question for the jury. It is true that, when the signal was given to the motorman to proceed with the car, he, being upon the front of it, and observing that there was room for the car to pass the truck in safety, had a right to assume that the driver of the truck, in proceeding northerly on Madison avenue, would keep away from the car, and thus prevent a collision. There was room for him to do so.. The truck, as already indicated, was only 8 feet in width, and there was a clear space between the car and the westerly line of Madison avenue of something like 14 feet. There was nothing in the street to prevent the driver from seeing the car, or to prevent his driving the truck as near the curb line of Madison avenue as he desired. Under such circumstances, we do not think it could be said that the motorman was negligent, after the front of the car had passed the truck in safety, because he did not observe how near the rear of the car, by reason of the overhang, was being brought to the truck. The motorman was stationed on the front of the car. He was obliged to observe what was taking place in front of him, and control the car accordingly, to the end that it might not injure persons in the streets, or collide with vehicles passing thereon. The rear of the car overhung the westerly track in rounding the curve much more than the front of it did, and, by reason of that fact, was brought much closer than the front end to vehicles upon the west side of Madison avenue. The appellant was just as much obligated to prevent a collision with the rear end of the car as it was with the front end, and, if it be true that the motorman’s duties were such that he was required at all times to look in front of the car, then the appellant should have required the conductor, or some one on the rear, to observe that, and, if a collision were about to occur, signal to the motorman to stop; and whether the appellant performed this duty, so far as the plaintiff was concerned, we think was a question for the jury to pass upon.
We are, however, of the opinion that the judgment must be reversed for an error in the charge.- The court charged the jury that:
*516The charge, as made,' assumed that the mere turning of the truck into Madison avenue called upon the motorman to anticipate, notwithstanding the space between the car and the westerly curb line of Madison avenue, that there might possibly be a collision between, the truck and the car, and there is nothing in the evidence which would have justified the jury in finding that the motorman might anticipate that fact. The location of the truck, the speed of the car,, and the distance between it and the curb line, in no way would suggest to a person of ordinary skill and prudence that the truck, in proceeding northerly on Madison avenue, might be brought so-close to the rear of the car that a collision would occur. The rule is well settled that there is no obligation on the motorman of a car propelled as this one was to take measures to avoid a collision until the peril becomes apparent. Stierle v. Union Railway Co., 156 N. Y. 70, 50 N. E. 419; Stabenau v. Atlantic Ave. R. R. Co., 155 N. Y. 511, 50 N. E. 277, 63 Am. St. Rep. 698. The jury had previously, during the course of the charge, been instructed that the plaintiff was bound to establish the appellant’s negligence by a fair preponderance of evidence; and yet, in the instruction here given, the court, as a matter of law, declares what would constitute such preponderance. Not only this, but the instruction was erroneous in that the statement was made to the jury, at least in effect, that the omission to exercise ordinary care and prudence on the part of the motorman would render' the appellant negligent, and by reason thereof liable, even though such lack of ordinary care and prudence did not in anyway contribute to the accident itself. There is nothing to show that the motorman was negligent in this respect, but, even if that fact be assumed, it is of no importance, unless his negligence was the proximate cause of, or in some way contributed to, the accident (Laidlaw v. Sage, 158 N. Y. 73, 52 N. E. 679, 44 L. R. A. 216); and under the instruction the jury could find the appellant liable for some neglect on the part of the motorman, even though his act had nothing-, whatever to do with the collision.
*515“If you find that the motorman, knowing that this truck was approaching his ear, and about to turn into Madison avenue, going north on the west side of the avenue, did not use that ordinary care and prudence that a man of his position and standing in life should have exercised, then I think the plaintiff has established, by what would be known in the law. as a ‘fair preponderance of evidence,’ the negligence on the part of the defendant company, through its motorman, in handling the car.”
*516It follows, therefore, that the judgment and order appealed from must be reversed, and a new trial ordered, with costs to the appellant to abide the event.
VAN BRUNT, P. J., and INGRAHAM, J., concur in result.