56 A.D. 419 | N.Y. App. Div. | 1900
This action was brought to recover damages alleged to have Been sustained by the plaintiff on the ground that the death of her intes
On the second trial substantially the same testimony was given as oil the former one, and in addition thereto that of two other witnesses, Catherine Franklin and Charles Ewing. The witness Franklin testified that she was on the.front seat of the carriage at the time the defendant’s car ran into it, and that at that time the carriage was on defendant’s tracks, and that she saw the car as it approached and when it collided with the carriage. The witness Ewing corroborated her in this respect, he testifying that he saw the car hit the back of the carriage. The fact that the defendant’s car either collided with the carriage, or struck one of the horses attached to it, was not dis-. puted. The defendant contended on the last, as it did on the former trial, that it was not responsible for the collision; that the intestate was driving along -by the side of its tracks, and when the car was within a few feet of the carriage, the horses either shied or were suddenly turned upon the tracks, and before the motorman could stop the car the collision occurred, while the plaintiff contended that the intestate was lawfully driving upon the defendant’s tracks, for the purpose of going to the Thirty-fourth Street ferry, and while thus driving, the defendant’s car was carelessly, negligently and without warning run into the rear of the- carriage and the intes-. tate was thrown from his seat to the ground and injured.
The case as now presented is different from what it was on the former appeal, in that two witnesses testified positively that the defendant’s car collided with the carriage. A question of fact was,, therefore, presented as to which contention was correct, and for that
An exception was taken to the refusal to charge as requested, and also to the charge as made. Both exceptions were well taken. The intestate was under just as much obligation to avoid the collision as the defendant was. To entitle the plaintiff to succeed in the action she must establish by a fair preponderance of evidence two facts: (1) That the injury to the intestate which resulted in his death was caused by the negligence pf the defendant; and (2) that his own negligence did not contribute thereto. When, therefore, the court said to the jury that the intestate “ was under no legal .obligation to look around to see ” if the car was approaching, it in effect said that the jury need not consider the question as to whether or not the intestate’s negligence contributed to his injury. This is not the law. The intestate was driving upon the defendant’s tracks, according to the plaintiff’s contention; and while driving there, if he knew that a car was approaching and was liable to or was about to collide with the carriage which he was driving, it was his duty to do whatever he could to prevent that collision; and if he did not do that, and by reason thereof he sustained an injury, the defendant could not be held liable for it. This rule is so well settled that it is unnecessary to cite authorities in support of it.
Eor the error thus, committed the judgment and order must be
O’Brien, Ingraham and Hatch, JJ., concurred; Van Brunt, P. J., concurred in the reversal as to the law and the facts.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.