2 Abb. Ct. App. 458 | NY | 1865
By the Court.
I think there was no error in denying the motion for nonsuit. The evidence on the part of the plaintiff tended strongly to show negligence in the management of the car; and, if his witnesses were entitled to credit, the servants of the defendants were not only violating the ordinance, of the city, but, in turning the curve into Canal-street at the speed described, were committing an act most likely to result in injuries to persons using the street. The conflicting evidence on this subject, as well as upon several other questions, made the fact whether the injury was caused
The exceptions to the refusals to charge were none of them well taken. The first request was not predicated of any of the facts in the case; for the child was not suffered "to be in the street without protection.” She was constantly attended by the person in charge of her, and only temporarily separated while the child ran in advance along the cross-walk. The facts on this point were fairly put to the jury by the court.
The second request was based upon the fact that the car belonged to the New York and New Haven Railroad Company, and not to defendant. But it was of no importance to whom it belonged. The party assuming to use it was responsible for its fitness to the use to which it was put. If the brakes were defective, the defendants were legally chargeable with any consequences that resulted from such defect while they were using the car for their own purposes.
The fourth request was sufficiently charged.
Nor do I think any of the exceptions to the charge are well taken. The charge was careful, well considered and impartial. The learned judge first laid down the general rule of law on which the plaintiff’s right to maintain the action depended, to wit, that “ he must satisfactorily establish that the child was injured through the negligence of the defendants or their servants, and that there was no neglect on his part, or, which is the same thing, that there was no neglect of the child directly contributing to the injury; ” and again, at the close of the charge, he recalled the attention of the jury to what he had said “ respecting the plaintiff’s being required to show himself wholly free from neglect.”
After referring to the evidence tending to show that the street was clear of vehicles and that no car was in sight, the
The exception “to that part of the charge which held the defendants liable for any insufficiency of the brakes or other apparatus of the Hew Haven car,” was aimed at and only reaches the question of the ownership of the car. Enough has already been said on the point of the liability of the defendants for the defectiveness of a car in their actual use, though not in fact belonging to them.
While commenting on the consequences of the car being equipped with insufficient brakes, the learned judge added: “ And in considering this question, it may not be amiss to bear in mind the evidence of those witnesses who testify to the rate of speed at which the car turned the comer of the street or alley-way before coming into Canal street, and the kind of brakes necessarily required to control a car going at the rate shown; and if, on examining the conflicting testimony upon this point, you come to the conclusion that the car came round the comer with the horses on the jump, as some have said, instead of on a walk as the city ordinances require comers to be. turned, and that this movement was so sudden that the woman and child, exercising the caution that' the law imposes upon all persons of mature years traveling upon the highway, did not see the danger until to late to avoid it, the defendants are liable, because in such a case, the accident would be the result of their violating the ordinances of the city, and any person has a right, in traveling upon the street, to assume that other persons will travel only at the speed and in the manner pointed out by the ordinances.” To this part of the charge the defendants excepted. I think the proposition of this charge was entirely sound, although it seems at first blush to be in conflict with the rule laid down in Brown v. Buffalo & State Line R. R. Co., 22 N. Y. 191.
In that case, the defendants were running a train of cars in direct violation of a city ordinance which affixed a penalty of one hundred and fifty dollars for the act. The judge charged that if plaintiff was free • from fault or negligence contributing to the injury, and the jury found that the injury was occasioned by, or would not have occurred but for, such violation of the ordinance, the defendant was liable. The court (with three dissenting judges) held, that this was error, because the penalty affixed by the ordinance was the only consequence which the law imposed for its violation.
That case stands upon ground altogether to doubtful to justify its application to cases not strictly within it. The opinion confounds all distinction between civil remedies and criminal
But this case is distinguishable from the'one cited, in the important particular that it does not appear in the case that any penalty was affixed to the ordinance, or that it is otherwise than a general prohibition, the violation of which is punishable as a misdemeanor. It was only because it appeared in Brown’s case that the public were entitled to a specific penalty of one hundred and fifty dollars for the forbidden act that it was held that a private citizen, whose person was injured by that act had no redress, on the ground of its unlawfulness, and it seemed to be conceded that had the public remedy been general, instead of the particular one prescribed by the ordinance, the party injured by the criminal act would have had some claim to a civil remedy.
Besides, the part now objected to was a portion of the charge relative to the liability for using deficient brakes, and it will bear the construction, though, perhaps, it is a strained one, that the substance was that defendants would be guilty of negligence in running their cars, in violation of a city ordinance, around a comer on a jump, instead of on a walk, with brakes insufficient to prevent a collision with passers on the street who were themselves free from negligence. So construed, the charge would not be obnoxious to any of the views expressed in Brown v. Buffalo & State Line R. R. Co., supra, for, if that case holds that any one who will pay the pecuniary penalty may violate the statute which - imposes it, with civil impunity,-it certainly enjoins that he shall not violate it in a negligent manner. If
In my opinion, the judgment below ought to be affirmed.
All the judges concurred, except Campbell, J., who dissented.
Judgment affirmed.