Upon the trial it appeared that the plaintiff was driving his team of mules hitched to a cart northerly along Orchard Street in New Haven and at its intersection with Chapel Street, and when his team had crossed the west-bound track of the defendant upon Chapel Street and was upon the eastbound track, a car approaching from the west collided with the cart and team, injuring plaintiff and damaging his cart and team.
The verdict was directed upon the theory that the evidence showed the plaintiff's contributory negligence. The defendant's negligence was not in issue on the argument of the appeal.
The plaintiff offered evidence to prove that the rule and practice of the defendant, with which he was familiar, required the defendant to stop its west-bound car at the crosswalk on the east side of Orchard Street to receive passengers; that as he approached Chapel Street he saw a car of defendant approaching Orchard Street and slowing down as if to stop; that no signal was given by the motorman; that he saw a man step from the northerly curb of Chapel Street at a point a little east of the easterly crosswalk as if to board the car; that the car practically came to a stop when this man boarded it; that the plaintiff thereupon, seeing the car about to stop and the man about to board the car, drove his team slowly on and across the tracks, and that the car without completely stopping started up and collided with the plaintiff.
Some of this evidence was contested, and the defendant offered evidence to prove that the plaintiff had driven in front of the moving car without attempting to stop his team.
In such a conflict of testimony and theories it cannot be held to have been unreasonable for the jury to have found in accordance with the testimony offered by the *Page 648 plaintiff. Had the jury so found, the conclusion might fairly have been drawn that these facts furnished a reasonable ground for the plaintiff's belief that he could pass in safety if both he and the motorman acted with reasonable regard to the rights of each other. McCarthy v. Consolidated Ry. Co., 79 Conn. 73, 76, 63 A. 725. We think the issue of contributory negligence was one of fact for the jury.
There is error, the judgment is set aside, and a new trial ordered.