Barringer v. United Traction Co.

101 A.D. 330, 91 N.Y.S. 998

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1905
• Status: Published

Opinions

Per Curiam :

The right of a street car upon that part of the street upon wliichi are its tracks has been called a paramount right. It is not an. exclusive right. . Those driving horses upon the street have a right'to the .use of the whole street subject only to the paramount right', of the street car company, where the use.of a particular part of the= street is sought by both at the same time. If a driver were bound to avoid the center of the street, where were the tracks of the company, whenever a car was in sight it Would be a serious limitation upon his right to use the street and in a city.of the size of Troy where cars run frequently would well nigh„exclude him from the: use of -that part of the street. If when driving upon the track he: leaves the track when warned by a signal from the motorman of the-car that the track - is needed for his ear we think he has done all that is necessary in recognition of the paramount right of the car to-the use.of that part of the street. At least it cannot be said as matter of law that his failure to leave the track when not warned constitutes such contributory negligence as would defeat his action for injuries sustained through the negligence.of the motorman in running Mm down without warning.

The judgment should be affirmed.

All concurred, except Parker, P. J., dissenting in opinion in. which'Chester, J., concurred.