54 N.Y.S. 626 | N.Y. App. Div. | 1898
The plaintiff in this action was injured in a collision between a car operated by the defendant and a wagon driven by the plaintiff in one1 of the streets of the borough of Brooklyn. The accident occurred on the 19th day of December, 1896, at 6:20 p. m., at a point between Seventy-Seventh and Seventy-Eighth streets, on Third avenue. The plaintiff was driving on the avenue, using the tracks of the defendant. There was evidence to show that the night was dark, and that the highway was not well lighted. The plaintiff had been driving on the tracks of the defendant for a considerable distance, and had on one or more occasions turned out, on a signal from the motorman, to allow cars to pass. At the time of the accident it appears that he had’ not been keeping watch behind
The case was submitted to the jury upon the questions of negligence on the part of the defendant and contributory negligence on the part of the plaintiff, the court correctly stating the rule of law applicable to the case in the general charge. The error in the case appears in the statement of law made by plaintiff’s counsel, and acquiesced in by the court, on a request by the defendant to charge “that the plaintiff had no right to suppose or presume that the car would come up and stop before it reached him.” This the court charged. Plaintiff’s counsel then suggested that “he had the right to assume that they would give him timely warning of its approach,—the motorman.” To this the court replied, “I have so charged;” thus giving the jury to understand that, if the defendant had failed to give “timely warning,” the plaintiff was absolved from all contributory negligence. This is not the law. While it was the duty of the motorman to give timely warning, if he saw the wagon, or if he might, in the exercise of reasonable care, have seen the wagon, in time to have given such warning, he was not bound to do so under all circumstances; and it was for the jury to determine, under all the circumstances of this case, whether the motorman had discharged his duty, and whether the plaintiff had been free from contributory negligence. The defendant did not have the absolute right to the use of the tracks; the plaintiff might lawfully drive upon them; but the defendant did have the paramount right, and the plaintiff could not drive upon the tracks of the defendant, and impose upon it the absolute duty of giving timely warning of the approach of the car. The plaintiff was charged with the duty of exercising reasonable care, in using the tracks of the defendant, to guard against collision. He could not depend upon the motorman to give timely warning. He was bound to exercise that degree of care which reasonably prudent persons should or would have exercised under the same conditions; and, if he failed in this regard, he was not entitled to recover damages under the law. He could not enter upon the tracks of the defendant, and, closing his eyes to his surroundings, await the timely warning of the defendant’s motorman. “He is bound,” say the court in the case of Adolph v. Railroad Co., 76 N. Y. 530, 537, “to keep out of the way when the need, under such circumstances, arises that he should. Hence there is upon him the duty of learning when the need has arisen or is likely to arise, and, as it is a duty actively to be performed, he is bound to use all the ordinary means of learning; and
The judgment should be reversed, and a new trial granted; costs to abide the event. All concur.