19 N.Y.S. 545 | New York Court of Common Pleas | 1892
The complaint alleged specifically, and the answer did not deny, that the horses and wagon with which plaintiff collided were owned by defendant’s association, and that they were at the time of the collision in the care and under the control of one of its servants. These facts must therefore be taken to have been admitted upon the trial, (Code Civil Proc. § 522,) and the inquiry was confined to the negligence of the driver of the wagon, the contributory negligence of the plaintiff, and the nature and extent of the latter’s injuries. Pedestrians and drivers of vehicles have equal rights to the use of a city street, and the duty to exercise such a degree of care and prudence as to avoid injury to themselves or to others, which the circumstances of the case demand, is reciprocal. Barker v. Savage, 45 N. Y. 191; Belton v. Baxter, 54 N. Y. 245; Brooks v. Schwerin, Id. 343. Nor is it negligence per se for a person on foot to cross a city street at any hour of the day or night elsewhere than at the cross walks, (Brusso v. City of Buffalo, 90 N. Y. 679,) or to omit looking both ways for approaching danger, as in the case of a person about to cross a railroad track, (Moebus v. Herrmann, 108 N. Y. 349, 15 N. E. Rep. 415.) If, therefore, the driver of a vehicle, with the exercise of ordinary caution, could have seen a person crossing at a point where there is no cross walk, and fails to do so, or if, seeing him, he could have avoided the collision, with the exercise of ordinary care, and does not do so, he will be adjudged guilty of negligence. Moebus v. Herrmann, Id.; Murphy v. Orr, 96 N. Y. 14.
Ii¡ appeared from the testimony of the plaintiff that on the 28th day of February, Í890, between 10 and 11 o’clock in the morning, she attempted to cross Hudson street, at a point distant from the cross walk, intending to visit a
Upon the foregoing facts it was pre-eminently a question for the jury whether plaintiff had taken all the precautions which a prudent person would have employed under like circumstances, and whether or not the accident would have been avoided but for the immoderate rate of speed at which- the wagon was driven through a city thoroughfare, or the failure on the part of ithe driver to exercise due care to avoid injury to travelers thereon, and the motion to dismiss the complaint was properly denied. Nor was the evidence of the carelessness of the driver impaired by the evidence subsequently introduced for the defense. It then appeared that at the time of the accident a prevailing fog partly obscured the street and travelers thereon from view, a cir•cumstance which, instead of justifying a relaxation of caution, only called ¿for the exertion of greater vigilance on the part of both plaintiff and the offending driver, to avoid the risk of injury; and it thus still remained a question of fact for the jury whether ordinary prudence should have prompted plaintiff to still further precaution, or due regard for the life and limb of those ■entitled to an equal use of the street required the driver of the express wagon to abstain from even the rate of speed which, under less dangerous conditions, may be tolerated. Gilbride, the driver, called as a witness for the defense, attempted to shift the responsibility for plaintiff’s injuries upon the ■driver of another wagon, which he claimed preceded the one driven by him, but his testimony in this respect is wholly uncorroborated by that of any •other witness, and is doubly subject to discredit because it is that of an interested person, and in conflict with the admissions made by him to Police •Officer O’Brien, who apprehended him shortly after the accident. The jury were therefore not bound to believe him. So. also, was the attempt to show
Defendant urges as ground for a new trial that the learned trial judge unduly emphasized the duty of the driver of a vehicle upon a city street to avoid injury to pedestrians, but a perusal of the charge shows that the jury were properly instructed touching the correlative rights and duties of such persons. We quote from the charge: “It is extremely important, right here, that you should understand the relative rights and duties of pedestrians and drivers of vehicles in the street or highway. I charge you here, the rights of pedestrians and of the owner of a vehicle in the public street—and I don’t mean the sidewalk—are equal. You have as much right in the center of the street as a coach driven by a millionaire, and drawn by four horses. You have equal rights in the street. No more the one than the other. What is the duty that the owner of a vehicle owes to the pedestrian ? It is the duty to exercise ordinary care, that I have already defined to you, to avoid injury to the pedestrian. And what is the duty, of the pedestrian to the owner of the vehicle? It is to ■exercise and observe ordinary cave to avoid being injured by the owner of the vehicle,”—and elsewhere the ordinary care is defined by the trial judge to be that degree of care which a prudent person would exercise under like conditions. Next, defendant urges that the charge was prejudicial to him, because it assumed that the injuries to plaintiff were the result of a collision with a team owned by defendant’s association, and in control of its servant. In view of defendant’s admission, as hereinbefore pointed out, that such was the fact, an instruction to that effect would not only have been justifiable, but proper. As it is, however, the charge gave defendant the advantage of a defense which he was precluded from making upon the pleadings, for the judge said: “I repeat to you, it is obligatory upon you, in order to give a verdict for the plaintiff, to find that it was the negligence of the defendant that caused the injury. And here pardon me for a moment to revert to the point whether the vehicle of the defendant caused the collision. You will remember the evidence, and my statement of it you must not take if it does not concur with your recollection. Reject it utterly, for it is for you to say what the.evidence is in this case, and whether it be sufficient to establish any requisite proposition.” Again, defendant urges that, in contrasting the "testimony of Tillie Stumpf, a witness for the plaintiff, with that of Gilbride, a witness for defendant, the charge tended to impress the jury with the fact that.the trial judge discredited Gilbride. But, be that as it may, it was not improper for the court to call attention to any seeming conflict in the witness’ statements; and an instruction that the jury were at liberty to reject Gilbride’s testimony altogether, though wholly un contradicted, would not 'have been error, 'since the fact that Gilbride was the person charged with the negligence which resulted in plaintiff’s injuries made him an interested witness. Elwood v. Telegraph Co., 45 N. Y. 549; Honegger v. Wettstein, 94 N. Y. 252; Bank v. Diefendorf, 123 N. Y. 191, 25 N. E. Rep. 402. So, also, defendant complains that it was error for the trial judge in charging the jury to read from an opinion of the court of appeals. It would be sufficient to dispose of this as a ground for reversal to say that no objection was made to the reading at the time, but this court has expressly held in Anderson v. McAleenan, (Com. Pl. N. Y.) 8 N. Y. Supp. 483, that “it is the duty of the judge to guide the jury; and whether he states the law from his own knowledge and memory, or reads it from decisions, treatises, or his own manuscript, is immaterial. It is within the province of the court to'say that a certain case is in its facts very like the •case at bar, provided, of course, that it be left to the jury to pass upon the