(dissenting). Plaintiff, going north, undertook to cross the street upon which were cars in the immediate locality, going south. His view of the *56•rear was cut off by tlie construction of tbe vehicle upon which he Avas riding. He says that he listened and heard no gong, and that he thinks that he would have heard the gong had any been sounded. The witness Kehoe, a policeman, says that, at the time the wagon started to go across the avenue, no gong was sounded by the’motorman; that he took particular notice of that, speaking to the conductor about it; and that “the motor car could have stopped before it got to the milk wagon; it had lots of time.” The witness Taylor says that the motor struck the wagon north of the middle of Congress street; that at the south cross-walk of Congress street the wagon turned to the west; that he first observed the wagon about midway between Lamed and Congress streets; and that at that time the west wheel of the wagon was within an inch or two of the track, running very close to the rail,-and possibly over upon the track. Tucker says that, when the motor struck the wagon, it was not far from the middle of Congress street, but it would be nearer the north line of Congress. Taylor says the wagon was crossing Congress street diagonally. The motorman testified, that when the wagon turned to cross the track, the wagon and car were 12 -feet apart. The witness Tucker says that the wagon was 15 or 20 feet ahead of the car when the wagon got on the track. The court directed a verdict for the defendant, and we are bound by that view of the testimony which is most favorable to the plaintiff.
From the testimony given, if a jury had found that plaintiff was within the lines of Congress street when he undertook to make the crossing; that at that time the car was 20 feet behind the wagon; that for some distance prior to that time the wagon had been within a feAV inches of the track, as stated by the witness Taylor; that no gong was sounded until after plaintiff had turned in upon the tracks, and was in the’ act of crossing; that plaintiff was giving, and was necessarily giving, some attention to the south-bound cars; that the motorman, *57had he kept'his car under control, could have stopped the car before he struck the wagon, — no court would have been justified in setting aside the verdict. I concede that the driver of a vehicle in a public street traversed by a street railway is bound to take notice of the conditions. But this is not a one-sided obligation. Streetcar companies are bound to recognize the rights of others to the use of the street, and, in approaching a vehicle upon the track, they are bound to take notice of the conditions that environ the driver of that vehicle. I cannot subscribe to the doctrine that a party entitled to use a public street is chargeable with knowledge, under all circumstances, of the approach of a car from the rear. A driver upon the track, or in close proximity to it, himself so circumscribed that he cannot see, is entitled to a warning before being run down. In the present case, according to the motorman’s testimony, he had seen the wagon for some distance prior to the collision; and the witness Taylor says that during all that time the left wheels of the wagon were within an inch or two of the track, and possibly over upon the track. The danger was in no sense undiscovered. It was, in any event, the duty of the motorman to observe and to see the danger. The case should have gone to the jury.