This is an action for damages resulting from a collision between one of plaintiff’s carts and one of defendant’s cars. The accident occurred in Amsterdam avenue near 174th street, at about 10 o’clock at night, but the street lights were lit, and there seems to have been no difficulty in seeing objects at a reasonable distance. Both vehicles were going down the avenue, and plaintiff’s wagon was struck from the rear. The main dispute on the trial was as to how long the cart had been on the track before the collision. The driver of the cart died from his injuries. The plaintiff insists that the cart had been on the track in front of the car for a considerable time, quite long enough for the motorman to have seen it, and slowed up so as to avoid a collision. The defendant claims that the ice cart had been driving along the avenue by the side of the track, and that the driver started to drive onto the track about 25 or 30 feet ahead of the car, so near that a collision could not be avoided. The principal witness for the plaintiff was the man who was the conductor of the car when the accident happened, but who was afterwards discharged. He swears that he went to the front platform, and saw the ice wagon squarely on the track ahead of the car, and that it was then two blocks away; that he started back to collect fares, and that the collision occurred in two seconds afterwards. Of course this estimate of distance and time must be erroneous in one or *220both of its elements, for it is quite impossible that the car could have traveled at the rate of nearly 140 miles an hour, which would have been its approximate speed according to the estimate of the ex-conductor, and to which he persistently adhered. It is true that the witnesses generally testify that the car was proceeding very fast — from 15 to 20 miles an hour — but this alone was not negligent as matter of law in a sparsely settled and little frequented locality. The conclusion is irresistible that the witness underestimated the distance or overestimated the time, or both. In either event, his evidence is of but slight value. Another witness for plaintiff, who was a passenger on the car, did not see the accident or notice the ice wagon before the accident. A third witness, a messenger boy, had his attention attracted by hearing some one shout. He then looked, and saw the ice wagon about 25 feet ahead of the car. His testimony is as consistent with defendant’s contention as it is with that of plaintiff. The defendant’s witnesses, three in number, including the. motorman, testify that the ice cart started across the track a very short distance in front of the car, some putting the distance as low as 25 feet. The plaintiff’s contention in its length and breadth is thus supported only by the very unreliable evidence of the former conductor. The position of the car after the accident seems to accord rather with the defendant’s theory than with that of plaintiff. The claim is that the ice wagon tried to cross from the middle of the avenue, where the tracks are wide apart, to the westerly side, and the motorman says that he hit the cart on the right side near the rear. The effect of such a blow would be to force the back of the cart down town, and turn it partially around, so that the front of the cart and the horses would be towards the car. All the evidence (the plaintiff’s as well as the defendant’s) is that after the collision the front wheels of the cart and one of the horses were under the front of the car, and one- of plaintiff’s witnesses says that the other horse was turned completely around, facing towards the rear of the car. If the cart had been traveling down the track, and had been hit squarely in the rear, the cart and the horses would hardly have been found in this position after the accident. On the whole, the evidence seems to preponderate so strongly in favor of the defendant’s claim as to how the accident happened that I am unable to find any evidence whatever tending to acquit the driver of the ice wagon from contributory negligence. The admission of the evidence that the motorman had previously been concerned with an accident was clearly erroneous, although it may not have affected the result, and would not, of itself, call for reversal; but for the other reason stated the judgment should be reversed.
Judgment reversed, and new trial granted, with costs to appellant to abide the event.
NEWBURGER, J., concurs.