75 N.Y.S. 583 | N.Y. App. Div. | 1902
There is no evidence in this record to support a finding that the driver failed to do his utmost after knowledge that those crossing-in front of him were in danger to avert the accident. His shouting enabled the women to step back in time to avoid being struck by the horses, and his testimony, supported by that of the witness Harrison, is that he at once applied the brake and pulled in the horses. The witnesses state that the boy went upon the track but a few feet in front of the horses, and the circumstances and manner in which the accident occurred show that only a brief interval of time and space separated the existence of danger and the collision. Although the car had stopped on the other side, when the people started to the northeast corner there is nothing to show that the driver was not, as were those crossing, suddenly made aware of the danger. And, although it appears that the child was dragged two. feet, it is not shown that this was the fault of the driver. The negligence in fact was predicated upon the failure of the defendant to furnish the car with a suitable brake, and it was upon this theory that the court submitted the issue to the jury.
Not satisfied, however, with the charge to which neither side took exception, the plaintiff’s counsel urged upon the court numerous •requests to charge and introduced propositions of law which, however good in the abstract, were not applicable to the case at bar, and as will be seen would necessarily tend not only to confuse, but to actually mislead the jury. Thus the court charged at plaintiff’s request, the defendant duly excepting, that if the car properly equipped could have been stopped after the driver saw the child, there was negligence on the part of the defendant even if the person with the child was negligent. The next request went a step further and charged that “ It is a rule of law ” that notwithstanding negligence on the part of the injured person, he may recover if the com
A request similar to this last was charged in Goodman v. Met. St. Ry. Co. (63 App. Div. 84), and resulted in a reversal of. judgment for the plaintiff. What the counsel had in mind undoubtedly in submitting these¡ various requests were cases like Weitzman v. Nassau Elec. R. R. Co. (33 App. Div. 585); Green v. Met. St. Ry. Co. (42 id. 160), and Totarella v. N. Y. & Queens County R. Co. (53 id. 413). In the Weitzman Case (supra), which is a good illustration, a child five years of age, upon being struck by an electric street car, fell upon the fender and was carried along for a distance of from 32 to 150 feet when he rolled from the fender in front of the advancing car and was run over and killed, and it was held-that, assuming the child to have been sui juris and that his falling, upon the fender resulted from his contributory negligence, it was the duty of the railroad company when the child had reached a position upon the fender, to have prevented the injury and death of the child if it had time and could have done so by the exercise-of reasonable care. As was therein said : “ Whatever the degree of negligence on the part of the individual in the original contact, that negligence culminated in the accident which landed him in the net of the fender. From that moment a new relation existed between the parties and any act or omission on the part of the defendant, amounting to a lack of the care demanded by the situation and resulting in the death of plaintiff’s intestate, is sufficient to charge the company with negligence.”
In the case at bar, however, there were presented the ordinary questions of negligence and contributory negligence, and there was' no suggestion, either in the pleadings or in the testimony, of any new situation being created after the plaintiff had come into a position of danger. Neither the cases referred to, therefore, nor the rule of law invoked by the plaintiff and embodied in the requests, had any application. It had been shown that the driver, with his utmost vigilance and endeavor, could not stop the car, and the testimony would support the inference that the child, when the accident occurred, was walking between his mother and another woman, and
The judgment and order, accordingly, must be reversed and a new trial ordered, with costs to the appellant to abide the event.
Yan Brunt, P. J., Patterson and Laughlin, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.
Note.— The rest of the cases of this term will be found in the next volume, 71 App. Div.— Rep.
