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and 118 New York State Reporter

PRINCE v. THIRD AVENUE R. CO.

(Supreme Court, Appellate Term. November 6, 1903.)

1. STREET RAILWAYS-NEGLIGENCE COLLISION WITH VEHICLE RIGHT TO CROSS TRACK-INSTRUCTIONS.

In an action against a street car company for personal injuries caused by a collision between plaintiff's wagon and a car, an instruction that plaintiff had the right to cross the track when he saw a reasonable opportunity to do so, even though it required the motorman to slacken speed, and that the rights of drivers of vehicles and those of electric cars were reciprocal, so that the gripman is bound to see to his charge as diligently as the driver of a vehicle to his, was not objectionable as substituting the mental process of the driver for the judgment of the jury as to whether the attempt to cross was reasonable.

Blanchard, J., dissenting.

Appeal from City Court of New York.

Action by Adolph Prince against the Third Avenue Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed. Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.

H. A. Robinson (Bayard H. Ames and F. Angelo Gaynor, of counsel), for appellant.

Emanuel J. Myers and Arthur Weil, for respondent.

BISCHOFF, J. Evidence, which the jury could properly accept, justified the finding that the plaintiff's wagon changed its course, in an attempt to cross the track, when the car was three-quarters of a block away, and the accident could well be attributed to the negligence of defendant's servant in operating the car with a total disregard of the situation before him. The recovery is not opposed to the weight of the evidence, and sufficient ground for reversal is not afforded, in my view, by an instruction to the jury to which the appellant has directed our attention.

The main charge appropriately defined the duty of care owing from the persons in control of the wagon and car, but later, in answer to a request by defendant for an instruction that the plaintiff's driver was bound "to wait at the approach of a car, and not delay its progress," the court said:

"I charge that the plaintiff had the right to cross the track when he saw a reasonable opportunity to do so, even though it required the motorman of the defendant's car to slacken its speed. The rights of drivers of vehicles, and those of gripmen of electric cars are reciprocal, so that the gripman of a car is bound to see to his charge as diligently as it is the duty of the driver of a hack or of any other vehicle to see to his charge."

The attention of the court and jury, when this instruction was given, was directed to the proposition, asserted by defendant, that the plaintiff's lawful right to cross the tracks depended upon his not delaying a car; and the words "reasonable opportunity," as used by the court in this connection, were in no sense inconsistent with the main charge as to the use of reasonable care. Nor did the charge substitute the mental process of the driver for the judgment of the jury as to whether the attempt to cross was reasonable. The words used

did not make the driver's judgment the test, but the reasonableness of the opportunity which "he saw." What he did see, and whether it was an opportunity to be seized in the exercise of due care, was obviously left to the jury; and, taking this charge as a whole, I cannot hold that there was any inconsistency, nor that the jury, in the usual understanding of words, could properly have been misled to the appellant's prejudice.

The judgment should be affirmed, with costs.

FREEDMAN, P. J., concurs.

BLANCHARD, J. (dissenting). The action was brought to recover damages for injury to plaintiff's wagon, harness, and merchandise by reason of a collision between one of the defendant's cars and plaintiff's wagon. The plaintiff asserted that the defendant was negligent, and that such negligence was the sole cause of the collision. This the defendant denied, and alleged contributory negligence on the part of the plaintiff. The proofs were sufficient to justify the submission of these questions to the jury, and we should not be disposed to disturb the verdict of the jury, except for that part of the charge of the learned trial court which was as follows:

"I charge that the plaintiff had the right to cross that track when he saw a reasonable opportunity to do so, even if it required the motorman of the defendant's car to slacken its speed."

We think this part of the charge of the court, both upon principle and authority, reversible error. It was for the jury, and not for the court, to say what the plaintiff had a right to do under the circumstances. The law required him to be reasonably prudent, and it was for the jury to say whether such prudence was exercised. It was not negligence, as a matter of law, for the motorman to fail to slacken the speed of the car; but it was for the jury to determine whether, under the circumstances, he was negligent, or not, in failing to do so. The language of Mr. Justice Hatch in McDonald v. Metropolitan Street Railway Company, 75 App. Div. 559, 560, 78 N. Y. Supp. 284, 285, writing for the entire court, is much in point. In that case the plaintiff's intestate had been killed. The learned justice said:

"As we construe this charge, it was left for the jury to determine whether the degree of care which the deceased exercised was such as he deemed adequate; and, if so, it answered the requirements of the law. Such is not the rule. The degree of care imposed upon the deceased was such as a reasonably prudent person of the same age would have exercised under the same or similar circumstances. The charge as made, however, substitutes for such care a mental process on the part of the deceased in reaching such conclusions as to what he deemed to be adequate care. Clearly, such is not the rule. If it were, every act of the party would be sustained, as such action would necessarily involve the degree of care deemed by him to be adequate in committing the act."

In Goetz v. Metropolitan, 54 App. Div. 369, 66 N. Y. Supp. 669, the court said:

"It is apparent that the portion of the charge just referred to, being a part of the main charge, was inconsistent with the portion first alluded to, which was made at the request of the defendant at the close of the main charge.

and 118 New York State Reporter

Under such circumstances, we think the final instruction, in so far as it was inconsistent with what had theretofore been said, qualified the former to that extent, and was the one which was to govern the jury in their deliberations." The judgment and order ought to be reversed, and a new trial ordered, with costs to appellant to abide the event.

VENUTA V. NEW YORK, W. & C. TRACTION CO. et al.

(Supreme Court, Appellate Division, Second Department. November 13, 1903.) 1. STREET RAILWAY-PERSON ON TRACK-INJURY-INSTRUCTION-RIGHT TO BE ON TRACK.

In an action, by a person riding in a wagon, against a street railway company, for an injury occasioned by the collision of a car with the vehicle, it is error to instruct that a person on a highway has no right to be on a street railway track when a car comes up, and no right to make a car slow up, though the court adds that, "To put it more precisely, the law requires them to use reasonable prudence to be off when the car comes up," and that "he has a right to be there, but with that right goes the duty to be vigilant to be off before the car comes up."

Woodward, J., dissenting.

Appeal from Trial Term, Westchester County.

Action by Antonio Venuta against the New York, Westchester & Connecticut Traction Company and another. From a judgment for defendants and from an order denying a new trial, plaintiff appeals. Reversed.

Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERĠ, JJ.

Odell D. Tompkins, for appellant.

Charles W. Church, Jr., for respondents.

WILLARD BARTLETT, J. We are of opinion that this judgment must be reversed on account of error in the charge. The suit grows out of a collision between one of the cars of the New York, Westchester & Connecticut Traction Company and a wagon upon which the plaintiff was riding. Speaking of the relative rights and duties of the motorman of the car and the driver of the wagon, the learned trial judge told the jury, among other things:

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"It is the duty of the motorman, of course, to carry his passengers with reasonable expedition. That is what these companies are for. Their business is not to lally-gag from here to Mt. Vernon when you get in the cars, but to carry you with reasonable speed. The car has the right of way over the track. The law gives it the right of way. Nobody has the right to be there when the car comes up. Anybody there owes it a duty to be off before the car comes up; or, to put it more precisely, the law requires them to use reasonable prudence to be off when the car comes up. You have no right, even, to make a car slow up. You have no such right whatever. You have not the right to get on a railroad track and slow a car up. It is your duty to use reasonable care to be off by the time the car comes up, because the car is carrying the public. There may be fifty people in the car, or thirty, or twenty, who are not to be stopped by one person who gets on the track. On the contrary, that one person's duty is to use reasonable care to be off. He has a right to be there, but with that right goes the duty to be vigilant to be off before the car comes up."

Exception was duly taken to this portion of the charge. It was certainly error to instruct the jury generally to the effect that a person on the highway has no right to be on a street railway track when a car comes up, and no right whatever to make a car slow up. In every case where a person on a street is run over by the wheels of a street car he must be on the track when the car reaches him; but if it is the law that he has no right to be there, as charged by the learned court in this case, there could never be any recovery on the part of the plaintiff in an action growing out of an accident of that character. The only ground on which this error can be disregarded is that the trial judge corrected it when he said that, "To put it more precisely, the law requires them to use reasonable prudence to be off when the car comes up;" or when he said further, "He has a right to be there, but with that right goes the duty to be vigilant to be off before the car comes up." But in neither of these qualifications is there anything which distinctly negatives the idea previously conveyed to the jury that a person in the way of a car cannot rightfully be at the point of collision when the car reaches him. There is no disaffirmance of that proposition in the statement that a person so situated must be vigilant to get off the track before the car comes up to him. Of course he must, if he has no right to be there at all at the time when he is struck. A charge to a jury is intended to tell laymen what are the rules of law applicable to the determination of the case which they are called upon to decide. The jurymen in this case were instructed in the most positive manner as matter of law that a traveler on the highway, who claimed to have been injured by collision with a street railroad car, had no right to be at the spot where the collision occurred at the time when it occurred. This instruction was emphasized by reference to the employment of the car in the service of the community as a carrier of 20, 30, or perhaps 50 passengers, whose convenience seemed to impress the court as in some way entitled to more consideration than that of other travelers on the highway. We cannot doubt that this portion of the charge was heeded by the jury, and we cannot find that it was subsequently withdrawn, or qualified so as to cure the error. The judgment must therefore be reversed.

Judgment and order reversed, and new trial granted; costs to abide the event. All concur, except WOODWARD, J., who dissents.

WOODWARD, J. (dissenting). The plaintiff seeks to recover damages for personal injuries conceded to have been sustained by him in a collision between a wagon driven by the son of the defendant George Underhill and a car operated by the defendant railroad company's servants, the plaintiff being an employé of the defendant. Underhill, and engaged in assisting in delivering a load of straw in the city of Mt. Vernon. The straw had been delivered, and the plaintiff and Benjamin F. Underhill were on their way home; Underhill driving the team, and the plaintiff sitting on the edge of the hay rack, with his feet overhanging one of the rails of the defendant railroad company. The roadway was macadamized, was 30 feet wide, with a single-track street-surface railroad in the middle. It was after dark,

84 N.Y.S.-35

and 118 New York State Reporter

and at the point of the accident the roadway was overhung with trees, so that one of the witnesses described it as being like running through a tunnel. Near the place where the accident occurred was an electric light. The car of the defendant railroad company was running toward Mt. Vernon at the rate of 6 or 8 miles an hour, and the team of the defendant Underhill was traveling in the opposite direction, apparently upon a trot; and all of the witnesses seem to substantially agree that the two vehicles did not come within view of each other, owing to the intervening electric light, until they were within 25 or 30 feet of the point of contact. It does not appear what, if anything, was done by the driver of the wagon, but the evidence is practically undisputed that, upon the wagon coming within the scope of vision of the motorman upon the car, he acted promptly in applying his brakes and reversing his power, and doing all that it was possible to do under the circumstances, to prevent the accident. He testifies that he was ringing his gong when he entered the dark place under the trees, and, while there were several witnesses who testified that they did not hear the gong, there were none of them who disputed the fact directly, and we are of opinion that the jury might very properly have found that the defendant railroad company was not guilty of neglect of any duty which it owed to the plaintiff. The place where the accident occurred was out in the country, and the rate of speed and the effort which the defendant's motorman made to stop the car and to warn persons of his approach were all consistent with that reasonable degree of care which the law exacts. This is the view which the jury might have taken of the evidence, and the verdict in favor of the defendant would seem to indicate that it reached this result.

The appellant urges that this was not an inevitable accident; that it might have been avoided by the exercise of greater care on the part of both of the defendants; and suggests that, if Underhill had driven farther over upon the side of the street, the collision with the outer edge of the hayrack would not have resulted, and it was this contact with the hayrack which is alleged to have caused the injury complained of by the plaintiff. But the question is never presented in this kind of actions whether the accident, in the light of what is known afterwards, might have been prevented by the exercise of a higher degree of care. It is whether the parties, under all of the circumstances, exercised that reasonable degree of care which reasonably careful and prudent men would or should have used under the conditions then and there existing; and it may not be said as a matter of law that Underhill was negligent in driving upon the highway, outside of the tracks of the defendant railroad company, in such a manner that 6 to 12 inches of his hayrack overhung the space which would be occupied by a car in passing. Under ordinary circumstances he would be able to see the approaching car in time to get out of the way, and it might be highly imprudent for him in the darkness to drive at the extreme outside of the beaten track, where his overhanging hayrack might come in contact with trees, hitching posts, or other obstructions. The jury, from the evidence, which was exceedingly vague as to the exact manner in which the plaintiff

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