The plaintiff when driving along a public street collided with a grocery wagon then in use by the defendant's servant in delivering goods for his master. The servant had just driven across from the right to the left side of the street, and had stopped or was in the act of stopping at the curb in front of a house at which he was to deliver groceries. The plaintiff approached from the opposite direction and was upon his right-hand side of the street. The collision occurred in the early evening at a dark place in the street.
The only negligence alleged on the part of the defendant is that the servant was upon the wrong side of the street and gave the plaintiff no notice of the fact. The servant was upon the left-hand side of the street for a lawful purpose, no statute, or ordinance of the city of Norwalk, forbidding it. We think that the facts in evidence raised no duty on his part to notify parties approaching of his presence there.
However this may be, the plaintiff was bound to know that vehicles and other obstacles were likely to be standing upon that side of the street, and it was his duty to so drive his own team that he could discover and avoid such obstacles if encountered. His evidence shows that he did not discover the defendant's horse, which was a white one, until he was within fifteen feet of it, and that he could not then avoid hitting the wagon, although he did everything he could to avoid it. If he could not, either by stopping or turning out, avoid colliding with the defendant's team after he discovered it, either he was negligent in not discovering it earlier, or was negligent in driving so rapidly into a dark street, where he could not see a white object before him until within fifteen feet of it, that he could *Page 504 not avoid obstacles when discovered. The evidence thus failed to show that he was not guilty of contributory negligence and the court properly set the verdict aside.
There is no error.