79 N.Y.S. 213 | N.Y. App. Div. | 1902
Lead Opinion
The plaintiff, while attempting to cross from the west to the east side of Sixth avenue, at or near the southerly crosswalk of Forty-first street, in the borough of Manhattan in the city of New York, was struck and seriously injured by an electric car operated by the defendant’s servants, on the westerly track of the defendant’s road on that avenue. He was walking forward, reached the westerly rail of the track, but was not able to turn or retrace his steps in time to avoid contact with the car. There was evidence to show that the car was proceeding at a very rapid rate of speed and that the motorman did not sound the gong or give warning as he approached the crosswalk. The plaintiff testified that when he left the sidewalk at the curb he looked up and down; that there was a truck on the westerly track above Forty-first street; that he could see through this truck, which was an open one, and there was no car behind it; that the truck turned into Forty-first street to the west, just as he the plaintiff, was near the track, and the car rushed upon' him.
Some members of the court, upon the whole evidence, are of the opinion that negligence of the motorman was not satisfactorily proven, but be that as it may, this judgment must be reversed for a very serious error of the court in refusing to give the jury an instruction which the defendant was entitled to have charged. "While the plaintiff himself testified to facts which might exonerate him from the imputation of contributory negligence, there were two witnesses whose accounts of his action at the time the accident occurred, if accepted by the jury, would have shown that the plaintiff was negligent or failed to observe due and proper care under the circumstances. One of those witnesses swore that as the plaintiff was approaching the track he was looking straight ahead, and another swore that when he first saw the plaintiff the latter was four or five feet from the westerly rail of the westerly track, with his head slightly bowed, and the attention of this witness was particularly directed to him by the fact that the plaintiff seemed to be either unconscious or heedless of his surroundings or where he was going •or what he was approaching, and that he continued to walk east from the west until the collision with the car, and that there was no change in his attitude with respect to his head or the way he was looking. With that evidence in the case,-the defendant requested the court to charge the jury that “if the plaintiff failed to look for an approaching car and was struck by one as soon as he put one foot upon its track, he was guilty of contributory negligence and the verdict must be for defendant.” The court refused to charge that, but modified it in the following words: “ Of course, if the plaintiff was reckless, failed to look up and down, heedless of the consequences, and this car was in sight and he put his foot upon the track, clearly he was guilty of negligence, and the defendant is entitled to your verdict, if you believe that to be the facts established in the case.”
This modification of the request was erroneous. The defendant was entitled to. have it charged as requested. Recklessness and
It is suggested, however, that the defendant cannot avail itself of this error because of the insufficiency of the exception taken to the refusal of the court to charge. A great many requests to charge were presented by both sides and they were ruled upon separately. At the conclusion of a colloquy between the court and counsel with reference to the charge and the requests to charge of both sides, counsel for the defendant addressed the court with respect to exceptions, and the court said, “ You may take them after the jury-have retired; either side may do that.” Whereupon the jury-retired. Then the defendant’s counsel said, “ Your Honor will allow me an exception in due form to each request which is refused and to each request which was modified,” to which the court responded, “ Yes.”
An exception so very general, if simply taken and entered upon the record without the acquiescence of the court, might be unavailing. Where the court refused to charge defendant’s requests, except as charged, and the defendant’s counsel took an exception to-the refusal to charge as to each and every one of said requests, the exception was held to be of no avail (Newall v. Bartlett, 114 N. Y. 399, 405); so, in Read v. Nichols (118 id. 224, 231), a statement made by counsel at the close of the charge that he excepted to the refusal to charge as requested in so far as the court did refuse, and to each of the refusals to charge as requested, was held to be too-general to raise any question of law on appeal. And to the same effect is Huerzeler v. C. C. T. R. R. Co. (139 N. Y. 493). In Smedis v. Brooklyn & Rockaway Beach R. R. Co. (88 N. Y. 14), at the close of the evidence, numerous requests to charge were presented by the defendant’s counsel, most of which were charged, and the court declined to charge “ except as already charged,” and to
The judgment and order appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event.
Hatch and Laughlin, JJ., concurred.
Concurrence Opinion
I concur in the reversal of this judgment upon the ground that the plaintiff failed to prove that he was free from contributory negligence. The plaintiff testified that he walked on the crosswalk on the south side of Forty-first street and Sixth avenue ; that he saw a truck approaching which at that time was just about the middle of the street turning west into Forty-first street; that he then started to cross the track and as he put his foot over the first rail the car struck him; that as he put his foot upon the track he noticed the car and attempted to turn and jump back; that the car was right on top of him, about four or five feet away when he first noticed it; that his left leg was then over the rail, the right foot not, yet over the rail; that turning to jump back he placed his back towards the car and was struck by the car on the right hip. He further testified that he could have seen the car if there had been one coming on the
I think, therefore, the complaint should have been dismissed, and for that reason the judgment should be reversed and a new trial ordered.
Van Brunt, P. J., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.