185 A.D. 867 | N.Y. App. Div. | 1919
Lead Opinion
This is an action by a passenger against a carrier to recover for personal injuries sustained on the 21st day of August, 1915, shortly after noon while the car was crossing.Twenty-fifth street on the north-bound track in Sixth avenue, New York city. I am of opinion that the judgment and order should be reversed on two grounds which I will consider separately.
First. The testimony on the part of the plaintiff tends to show that as the defendant’s car, on which the plaintiff was a passenger, approached Twenty-fifth street from the south, a horse attached to a truck was going easterly on Twenty-fifth street across Sixth avenue at a walk or jog trot; that the horse, without slowing up or giving any indication that the driver intended to stop, reached the track on which, the car was moving ahead of the car and when it must have been nearly or more than a car length away; that the head of the horse was across the westerly rail before the car reached that point, and that thereupon the driver, observing that the car was coming on instead of stopping to take on passengers who were waiting to board it immediately to the south of the crossing, pulled on the reins lifting and swinging the head of the horse back and southerly away from the car as the front of the car passed, and that when the horse settled down one of the shafts of the truck entered the side of the car and injured the plaintiff, who was seated on the westerly end of the fourth seat from the front. On the part of the defendant the evidence tends to show that the car was proceeding at the ordinary rate of speed over the crossing, viz., about five miles per hour, and that the horse was approaching
It thus appears that if the testimony offered by the plaintiff was accepted as credible, a position of grave danger of collision was presented to the motorman as he approached or reached the crossing; and if the testimony offered by the defendant was accepted, there was not presented to the motorman a position from which such danger should have been apprehended. According to some of the decisions in this jurisdiction, in the one case, viz., if the motorman was confronted with a situation of grave danger of injury to passengers, it was his duty to exercise the utmost or highest degree of care and foresight of which the human mind is capable, to avoid a collision (Maverick v. Eighth Ave. R. R. Co., 36 N. Y. 378; Keegan v. Third Ave. R. R. Co., 34 App. Div. 297; affd., by a divided court, 165 N. Y. 622; Stierle v. Union R. Co., 156 id. 70, 684; Koehne v. N. Y. & Queens County R. Co., 32 App. Div. 419; affd., 165 N. Y. 603; Zimmer v. Third Ave. R. R. Co., No. 1, 36 App. Div. 269; Schneider v. Second Ave. R. R. Co., 59 Super. Ct. 536, 541; Loudoun v. Eighth Ave. R. R. Co., 162 N. Y. 380, 387; Sheppard v. Brooklyn Heights R. R. Co., 146 App. Div. 806, 809); but according to many authorities, when not confronted with grave danger, the duty of ordinary care only devolves upon the motorman in operating the car, which, of course, may require a very high degree of care. (Regensburg v. Nassau Elec. R. R. Co., 58 App. Div. 566; Conway v. Brooklyn Heights R. R. Co., 82 id. 516; Kelly v. Metropolitan Street R. Co., 89 id. 159; Merrill v. Metropolitan Street R. Co., 73 id. 401; Endres v. International R. Co., 129 id. 785; Walsh v. Yonkers R. R. Co., 114 id. 797. See, also, Ganguzza v. Anchor Line, 97 App. Div. 352; affd., 184 N. Y. 545; Palmer v. D. & H. C. Co., 120 id. 170; Beltz v. Buffalo, R. & P. R. Co., 222 id. 433; Dittmar v. International R. Co., 173 App. Div. 995; Miller v. Ocean S. S. Co., 118 N. Y. 199, 211; Kelly v. Manhattan R. Co., 112 id. 453; Murphy v. Hudson & Manhattan R. R. Co., 180 App. Div. 585, and Ayers v. Rochester R. Co., 156 N. Y. 104.) The only negligence with which the defendant was charged was the negligence of the motorman in operating the car. The court, without differentiating between
Second. I am also of the opinion that the rule prescribed by some of the decisions by which the carrier is held liable for the failure of the motorman to exercise the utmost or highest degree of human care and foresight when confronted with grave danger, is one most difficult of application by a jury and perplexing alike to bench and bar. (See Thoreson v. New York State Railways, 98 Misc. Rep. 37.) Ordinarily it is recognized that an individual may not be able to do the most prudent thing when confronted with danger and one who is called upon to act in an emergency for which he is not responsible is not always required to exercise even ordinary care (Getman v. D., L. & W. R. R. Co., 162 N. Y. 21; Lewis v. Long Island R. R. Co., Id. 52; Koster v. Coney Island & Brooklyn R. R. Co., 165 App. Div. 224; Van Ingen v. Jewish Hospital, 182 id. 10; Quill v. New York Central & H. R. R. R. Co., 16 Daly, 313; affd., 126 N. Y, 629); but that rule, of course, does
The performance of the duty of ordinary care often requires the exercise of a very high degree of care when that is necessary to be commensurate with danger apparent or to be apprehended and guarded against; and ordinarily it should be left to the jury to determine what degree of care will constitute ordinary care in a given situation. It thus appears to me that by the change I am suggesting the administration of the law iii such cases will be simplified and rendered certain and more easily understood and that it will lessen the necessity of ordering new trials. The matter is not regulated by statute but by judicial decisions only. We have the same authority for declaring and applying this rule of ordinary care in all such cases that was possessed by the court when the two rules prescribing the liability of a carrier for the conduct of the motorman were promulgated, viz., the one of ordinary care governing when danger is not apparent or to be apprehended and that requiring the utmost and highest degree of care in the presence of grave danger. I am of opinion, therefore, that the rule of ordinary care as herein suggested should be applied throughout in determining the' care required to he exercised, not by the responsible management of the company, for the safety of passengers, but by motormen in the operation of cars. Such a rule would be readily understood by the bench and bar and could be applied without the slightest difficulty by jurors and without the danger of-misapprehension and of erroneous application incident to the application of the rule of extreme and highest degree of care in such' cases. If this point should arise in the Court of Appeals and that court should be convinced that the existing
This court is in close touch with the trial courts and its members are free to, and at times some of them do, hold Trial Terms in other departments and the decisions of the Appellate Division on this class of questions are ordinarily final; and, therefore, since the point might not be presented to the Court of Appeals for a long time, I deem it quite proper that we should prescribe the change I have suggested, from which there will be evolved, I believe, a practical rule for the intelligent administration of the law on this subject, just as resulted from the change from the sui juris rule which was brought about by decisions of this court in the first instance and is now generally accepted and applied and has resulted in eliminating in nearly all cases of that class assignments of error that were quite common theretofore.
I am of opinion, therefore, that the judgment and order should be reversed on both grounds and a new trial granted, with costs to appellant to abide the event.
Clarke, P. J., and Merrell, J., concurred.
Concurrence Opinion
For many years I have been of the opinion that to grade negligence and care into degrees was unscientific, difficult in application and troublesome in the actual conduct of litigation. Negligence is the failure to exercise the care which the circumstances of the particular case require.
I, therefore, agree in the reasoning of the opinion of Mr. Justice Page. But this is an intermediate court. I feel that we have no right to disregard the many cases in the Court of Appeals which have discussed degrees of care and attempt to establish a rule of universal application not in harmony therewith, especially when a concrete case is before us for decision which does not involve such important matters as roadbed, equipment, signals, rules, etc.
We are all of the opinion that this judgment should be
The action is to recover damages for personal injuries ■ sustained by the plaintiff, a -passenger, by reason of the alleged negligence of the motorman in operating a car of the defendant, a common carrier. The undisputed facts are that the plaintiff boarded an open car going north operated by the defendant on Sixth avenue, in New York city, seated herself at the westerly end of the fourth seat from the front and paid her fare. When the car was crossing Twenty-fifth street a truck, drawn by one horse, collided with the car, the left-hand shaft striking the plaintiff’s leg, causing serious injury. The conflict in the evidence related to the movement of the truck. The plaintiff’s witnesses testified that the driver of the truck, coming from the west on Twenty-fifth street, saw the car approaching the south crossing, and seeing a number of persons standing there, apparently with the intention of boarding the car, thinking that the car would stop, proceeded across the avenue, but the car did not slacken its speed, and after the horse’s head was over the westerly rail, in an attempt to avoid a collision, the driver jerked on the reins, causing the horse to rear, and swung the horse around to the south, nearly parallel with the car, and as he came down the left-hand shaft struck the plaintiff’s leg.
The defendant’s witness testified that the horse had not started across the avenue when the car reached Twenty-fifth street; that it did not stop but proceeded on a trot and ran into the side of the car. The court charged the jury: “ In this case the rule of negligence differs from the class of cases to which I have referred. The rule laid down by our highest court applicable to the defendant * * *, is as follows, and I read to you * * * an excerpt from the opinion of the Court of Appeals: ‘ Passenger carriers bind themselves to carry safely those whom they take into their coaches, so far as human care
It is not inappropriate, in an opinion of an appellate court, to say, taking into consideration the facts as found by the jury, that under the circumstances the carrier was required to exercise the highest or a high degree of care, or only ordinary care. Such expressions should not be given the effect, however, of attempting to establish any other or different degree of care than that expressed in the common-law rule, and the reading of excerpts from judicial opinions in other cases is calculated to mislead rather than help the jury. “ Judicial opinions are written to guide judges, not juries, and the judge who presides at the trial is expected to deduce the rules of law applicable to the case from all that has been recorded for his instruction, and to deliver them to the jury relieved, as much as possible, from the verbiage _ in which they are found clothed. * * * There is no standard but the discretion of the judge himself to determine how much help he shall render a jury in weighing facts, and applying the law to them. Perhaps the least amount of aid is rendered where the law is delivered in the form of copious extracts from judicial opinions in other cases, but nevertheless, we can not say the Court erred in matter of law, when they
In the case under consideration the jury were required to determine, as a matter of fact, whether the truck had proceeded so far that a collision could have been seen to have been, if not inevitable, at least proximately sure to have resulted unless the motorman stopped the car, in accordance with the testimony of the plaintiff’s witness; or, on the other hand, whether the situation was such that the car had proceeded so far across the intersecting street that no danger from a collision could be reasonably apprehended, as disclosed by the defendant’s witness. Instead of presenting those two situations to the jury, so that they could apply to each the test, did the motorman use the care that a reasonably prudent man would have done under those circumstances, when he was under an obligation to carry the passengers in safety, the court charged in general language an excerpt from a Court of Appeals opinion: “ Passenger carriers bind themselves to carry safely those whom they take into their coaches, so far as human care and foresight will go. That is the utmost care and diligence of very cautious persons.” With such a charge, unqualified and unexplained, the jury may have found the facts as disclosed by defendant’s witnesses and felt themselves constrained to find the defendant chargeable with negligence, for they very reasonably might have considered that “ a very cautious person ” in the exercise of “ the utmost care and diligence ” would have stopped and allowed a team to pass over, though there was no condition to suggest imminent danger. The instruction was, therefore, erroneous, and the exception thereto necessitates a new trial.
The judgment and order will, therefore, be reversed and a new trial granted, with costs to appellant to abide the event.
Dowling, J., concurred.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.
See Bowen v. N. Y. C. R. R. Co. (18 N. Y. 410).— Rep.