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she misjudged the distance of the car from her, such fact would not

of itself constitute contributory negligence. 2 SAME-NEGLIGENCE.

Where, in an action for injuries to a pedestrian at a street intersection by collision with a street car, it was not disputed that the car was running at the rate of seven or eight miles an hour, though there was evidence that the car was under control, whether the operation of the

car was negligent was for the jury. & SAME-INSTRUCTIONS.

Where, in an action for injuries to a pedestrian at a street intersection by collision with a street car, plaintiff testified that she looked twice while crossing the street, and at the first time saw the car a block away, and on the second occasion a half block away, an instruction authorizing the jury to say whether or not plaintiff miscalculated or misjudged the distance, or whether she failed to exercise ordinary care in making the usual and ordinary observation, and thus brought the accident on herself,

was not objectionable, as not based on the evidence. Appeal from Trial Term.

Action by Sophia Mauer against the Brooklyn Heights Railroad Company. From a judgment in favor of plaintiff

, and from an order denying a motion for a new trial on the minutes, defendant appeals. Affirmed.

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

I. R. Oeland, for appellant.
Henry A. Powell, for respondent.

WOODWARD, J. The plaintiff is a woman 78 years of age. She left her home on Furman avenue, borough of Brooklyn, in the afternoon, and walked down the right-hand side of the street, in the direction of Broadway. Furman avenue does not cross Broadway, but diagonally across that thoroughfare Sumpter street intersects, so that in law there is a street crossing, at which point the rights of pedestrians and the defendant's cars stand upon an equality. When the plaintiff reached the corner of Broadway and Furman avenue, according to her evidence, she looked and saw the defendant's car approaching at a distance of about one block. She started to walk diagonally across in the direction of Sumpter street, and when about halfway across, and, as she says, when she was between the first and second rails (evidently meaning the first line of defendant's tracks, there being two upon Broadway), she looked a second time, when the defendant's car which struck her appeared to be half a block away. She continued a few steps, when she was struck, she thinks, by the projecting step of the car, and from that time on she has no recollection of the accident. There seems to be practically no dispute that this old lady was not upon the track in front of the car, but that she was walking diagonally across, so that the car approached her from the rear or side, and she was struck by the fore part of the car, after the fender had safely passed her. While there is undoubtedly room for an honest difference of opinion as to the freedom of the plaintiff from negligence contributing to the accident, it can hardly be said as a matter of law that there was not some evidence of care on her part, and, if she misjudged the distance of the car from her, this does not, of itself,

and 118 New York State Reporter constitute contributory negligence. The evidence was not disputed that this car was running at the rate of seven or eight miles an hour at this street intersection, and, while it is claimed that the car was under control, this is but a mere relative term. Cars are under control, it may be said, when they are running at any given rate of speed, so long as the machinery and the attendants are in condition to respond to the necessities of the situation; but the control which the law demands at street intersections is such control as will prevent, in the absence of negligence on the part of pedestrians or others lawfully using the highway, the occurrence of accidents, and seven or eight miles an hour is not, as a matter of law, such control. The question of negligence does not depend so much upon the rate of speed as upon the ability of the motorman or other servants to prevent accidents, and it is always a question of fact, taking into consideration all of the circumstances, whether the operation of the car was negligent or not. In this case we think the jury were justified by the evidence in finding that the operation of the car was negligent.

It is urged, however, that the learned court erred in charging the jury. The proposition charged, and to which the defendant took an exception, was as follows:

"You may say, however, that she did make an observation at the curb, and that she did make an observation as she was going across, but that she to some extent is mistaken as to the distance at which the car was away. although she says that, in her estimation, it was at one time a block away. and when she got to the middle of the passage across the street that it was about half a block away, and that she may have misjudged the distances and her ability to cross, taking into account that she judged the distances to be at what she says they were, and it will be for you to say whether this was a miscalculation and misjudgment upon her part, or whether she failed to exercise the ordinary care of making the usual and ordinary observations, and thus brought the accident upon herself."

We are of opinion that the criticism of this charge is rather too refined to meet the demands of a practical system of jurisprudence. It is urged that there was no evidence on which to base that portion of the charge which permitted the jury to find that the act of the plaintiff in attempting to cross the street was a miscalculation or error of judgnient, etc. The rule of law requires that the plaintiff shall establishi to the satisfaction of the jury that she has used that reasonable degree of care which the circumstances demanded. She has testified that she looked twice; that each time she saw the car which subsequently struck her; that at one time it was one block away, while at another time, and when she was within a few feet of the point of crossing the track, the car was half a block away; and that she continued upon her way diagonally across the tracks. The fair inference from this evidence is that she intended to cross the tracks, and, while the fact that she was struck after taking a few steps is some evidence that she had misjudged the distance of the car, it does not preclude the jury from holding that she had exercised that reasonable degree of care which the situation, as it appeared to her, demanded. Undoubtedly, if the car was half a block away, approaching a street intersection, it was not negligence as matter of law for this woman to attempt to cross in front of it. If it was so feet away, as testified by one of her

witnesses, and within that reasonable control which she had a right to anticipate at that point, it could not be said as matter of law that it was negligent for her to continue on her way; and the suggestion of the learned trial justice that the jury might determine whether she had made an error of judgment as to the distance of the car was merely an assertion of the obvious right of the jury to determine whether, under all of the circumstances, the evidence established freedom from contributory negligence on her part. Read v. Brooklyn Heights R. R. Co., 32 App. Div. 503, 507, 53 N. Y. Supp. 209.

The judgment and order appealed from should be affirmed, with costs. All concur. (87 App. Div. 107.)

HARTLEY v. PIONEER IRONWORKS. (Supreme Court, Appellate Division, Second Department. October 22, 1903.) 1. CORPORATIONS-RESOLUTIONS-RIGHT TO VOTE-INTEREST.

Where a corporation, having acquired in its corporate capacity certain of its own stock, proposed to sell the same to three of its directors for a certain price, and to pass a dividend in order to allow the directors to pay therefor, such directors were incompetent to vote on the resolution,

in the absence of consent by all persons interested. 2. SAME-CORPORATE RESOLUTION-DECLARATION OF DIVIDEND-CONSTRUCTION.

Defendant corporation, finding itself the owner of 70 shares of its own stock, adopted a resolution that the company would sell the same to the plaintiff and two others who were stockholders at a certain amount per share, and declare a dividend to allow them to pay for the same. A subsequent resolution was passed on the same day, declaring a dividend of $87.39 per share to allow plaintiff and the other purchasers to pay for the 70 shares, and providing that certain other stockholders should apply their dividends toward liquidating a debt to the company. No transfers were, however, made under the first resolution, and thereafter another resolution was passed declaring a dividend, so that the 70 shares at present unissued could be taken up by plaintiff and his associates, the portion of the dividend accruing from their interests to go toward paying for the 70 shares, and the portion of such other stockholders to the indebtedness previously defined, and thereafter each stockholder was credited with a dividend of $87.39 per share, and plaintiff and his associates were credited with the dividend on their interests and also on the 70 shares, after which, on objection being made, the credits were changed so as to make the dividend declared $132 a share on the stock actually issued, excluding the 70 shares. Held, that the stock was sold to plaintiff and his associates ex dividend, and not dividend on, and hence plaintiff was not entitled to recover the additional dividend on his portion of such stock.

Hooker and Jenks, JJ., dissenting. Appeal from Trial Term.

Action by James Hartley against the Pioneer Ironworks. From a judgment dismissing plaintiff's complaint on the merits, he appeals. Affirmed.

Argued before BARTLETT, JENKS, WOODWARD, HIRSCHBERG, and HOOKER, JJ.

William N. Dykman, for appellant.
Albert G. McDonald, for respondent.

11. See Corporations, vol. 12, Cent. Dig. $$ 1401, 1402.

and 118 New York State Reporter WOODWARD, J. In October, 1896, William L. Bass, Samuel H. Milliken, and James Hartley were the directors of the Pioneer Ironworks, the 480 shares of stock being owned as follows: Alexander Bass, 122 shares; William L. Bass, 101 shares; Mrs. William L. Bass, 51 shares; Samuel H. Milliken, 92 shares; James Hartley, the plaintiff, 39 shares; Alfred Mecke, 5 shares; and the Pioneer Ironworks, in its corporate capacity, 70 shares. It is conceded that "in or about October and November, 1896, it was agreed among the shareholders and directors of defendant that these seventy shares should be sold, forty-eight thereof to Samuel H. Milliken, twenty thereof to James Hartley, and two thereof to Alfred Mecke, at the price of two hundred and fifty-seven 17/100 dollars per share," but there is nothing said as to an agreement by the interested parties whether these shares of stock, which had been purchased by the corporation, should carry dividends or not. On the 22d day of October, 1896, the directors above named met and adopted a resolution “that the eompany sell to Messrs. Milliken, Hartley, and Mecke the seventy shares finally purchased from the estate of Henry Franke for the sum of $205.17 per share, with the understanding that the company declare a dividend to allow them to pay for the same." Messrs. Milliken and Hartley, two of the proposed purchasers, voted in favor of this resolution, and Mr. Bass voted against it. This was likewise true of the subsequent regulation, adopted on the same day, and which provided that "we declare a dividend of $87-38 per share, so as to allow Messrs. Milliken, Hartley, and Mecke to pay for the seventy shares; Messrs. Alexander Bass, W. L. Bass, and Mrs. W. L. Bass to apply their dividend toward liquidating the debt of Mr. W. L. Bass, Consuelo mortgage." It thus appears that Messrs. Milliken and Hartley, occupying a fiduciary relation to the other stockholders of the defendant corporation, were voting dividends to themselves to pay for the stock which belonged to all in common, and this, so far as the evidence goes, without any consent on the part of the stockholders generally, except as to the price which was to be paid for the stock. At the time the consent to the sale of the stock was given no dividends had been declared, and the natural presumption would seem to be that the sale contemplated the stock as it stood, not with dividends declared at the option of the purchasing parties and added to the stock, but the stock as it existed at the time of the agreement.

The rule is well established that no man can be a vendor and a purchaser at the same time (Hill on Trustees, p. *160); nor will it permit him, as a director of a corporation, to be beneficially interested in transactions which are against the common interests of the corporation (Redhead v. Parkway Driving Club, 148 N. Y. 471, 474, 42 N. E. 1047, and authority there cited). It is true that contracts of this nature, in a purely private corporation, are not void, but voidable, at the election of those who are affected by the fraud. Skinner v. Smith, 134 N. Y. 240, 242, 31 N. E. 911, and authorities there cited. In the case now before us, Mr. Bass, as one of the interested parties, not only refused to acquiesce in the vote, but he offered a resolution, which was defeated by the votes of the two interested directors, that the company “declare a dividend for an amount suitable for Messrs.

Milliken, Hartley, and Mecke to take over the seventy shares, and what may be to the credit of Mr. Alexander Bass, Mr. W. L. Bass, and Mrs. W. L. Bass to be credited to the Consuelo account. The interpretation of this resolution, as afforded by the subsequent action of the corporation, was that it was proposed that a dividend be declared upon the active stock sufficient to enable the plaintiff and the other proposed purchasers to pay for the 70 shares out of the dividends upon the shares that they then held, and that this enlarged dividend to the other stockholders should be used in discharging an individual indebtedness to the corporation owed by W. L. Bass; that is, if the dividend had been fixed at $132 per share, it would have resulted in $17,952 upon the 136 shares owned by Messrs. Milliken, Hartley, and Mecke, while the agreed price of the 70 shares, $257.17, would have aggregated a trifle over $18,000, and the other stockholders, instead of making the plaintiff and his fellow purchasers a present of $87.38 per share upon 70 shares of stock, would have realized a considerable sum of money or credit in the discharge of the obligations of W. L. Bass. However this may be, no transfer of the stock appears to have been made under the resolutions adopted as above set forth; but on the 25th day of November, 1896, at a meeting of the directors, it was moved by W. L. Bass "that with the various letters at hand from Mr. Alex. Bass affording his approval, and with Mr. W. L. Bass' letter of November 25, 1896, at hand, affording his approval, a dividend be declared, so that the seventy shares at present unissued can be taken up by Messrs. Milliken, Hartley, and Mecke, and that the annual report will show all stock outstanding in full, that portion of dividend accruing from Messrs. Milliken, Hartley, and Mecke's interests to go towards paying for the seventy shares, that portion of dividend accruing from Mrs. Bass and Mr. W. L. Bass' interests to be credited to the Consuelo indebtedness, while that portion of the dividend accruing from Mr. Alexander Bass' interest be held in suspense awaiting more definite instructions prior to crediting Consuelo account," etc. This resolution appears to have been accepted unanimously, though the record does not declare it to have been adopted, and must be deemed to have superseded the resolution of October 22d, under which no action had been taken. This resolution, in its essential particulars, so far as this controversy is concerned, is to the same effect as the defeated resolution of October 22d; it does not name the amount of the dividend, nor does not declare any intention of extending the dividend to the shares of stock which were about to be issued. The language of the resolution is that “that portion of dividend accruing from Messrs. Milliken, Hartley, and Mecke's interests (the interests which belonged to them when the resolution was adopted] to go towards paying for the seventy shares.” It seems, however, that Alfred Mecke, one of the purchasers, acting under the directions of Mr. Milliken, credited each of the stockholders with a dividend of $87.39 upon the books of the corporation, including the 70 shares which had been transferred to Messrs. Milliken, Hartley, and Mecke under date of December 1, 1896. Things appear to have remained in this situation until July, 1898, when a settlement took

84 N.Y.9.-6

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