96 N.Y.S. 324 | N.Y. App. Div. | 1905
The plaintiff’s, judgment is for personal injuries received on December 24, 1901, in a collision with one of the defendant’s cars while he was driving to a fire in the borough of Manhattan, Mew York city, a wagon belonging to the service of the 'fire insurance patrol. It is unnecessary to state the circumstances .of the accident in detail inasmuch as the defendant makes no claim on this appeal that the facts as,presented on the plaintiff’s behalf, if accepted as true by the jury; do not justify the verdict, but contends chiefly that error was committed by the trial court in the instructions given, on the submission of the case to the jury. . ,
By the provisions of section 748 of the Greater BFew;York charter (Laws: of 1897, chap. 378)^ as amended by chapter 155 of the Laws of 1900, the officers and men. of the'insurance patrol, with their apparatus, while at and in proceeding to any fire* when on .duty, are given the right- of way in the streets over all vehicles except those carrying the United States mail, and it is' made a misdemeanor for any person in or upon any vehicle to refuse to accord such tight of way, or to obstruct the apparatus or those in-charge of it while in the performance of their duty, We do not. consider these provision's in any respect violative of the Constitution. They, are embraced- in a public act óf which the courts take judicial notice, and the- motorman. in charge of the car with which the plaintiff’s patrol wagon collided had been instructed to regard them, and to give the right oí way to all fire apparatus in the streets.
It is claimed, however, on the part of the defendant that the trial court erred in charging the jury that it was the absolute duty of the defendant’s motorman to stop his car and accord the right of way to the plaintiff,, if he had opportunity and time to do so, irrespective.of the requirements of reasonable care. As an abstract proposition the duty is absolute, but a fair reading o'f the charge clearly indicates that the court expressly held the motorman only to the exercise of reasonable care in that regard., ' The court had charged generally that the measure of the motorman’s duty was only the exercise of ordinary care. The plaintiff’s counsel thereupon asked the court to. charge as follows: “ I ask yótir Honor to charge that it was the duty of the motorman of the approaching car if he discovered the patrolxtruck, or if in the exercise of reasonable care he could have.
But as has been said it was as an abstract proposition the duty of the motorman to obey the law. This was held in Geary v. Metro
Rich and Miller, JJ., concurred; Woodward and Jenks, JJ., dissented.
Judgment and order affirmed, with costs.