12 N.Y.S. 223 | New York City Court | 1890
Blaintiff brought this action to recover damages for injuries sustained by the alleged negligence of a driver of one of the defendant’s street-cars. On December 5,1889, plaintiff was driving in an empty coal cart down Twentieth street, between Seventh and Eighth avenues, in the right-hand or northerly track of defendant’s road. He was followed, about 60 feet in the rear, by another empty coal cart. The last-mentioned cart turned out of the track, and, when the car in question got within about 20 feet of plaintiff, he then, as he testifies, became aware of its proximity. At that time, another car was passing plaintiff’s cart on the left-hand or southerly track, and plaintiff testified that he waited for that car to pass before turning out to the left-hand track, as there was not room enough for him to turn out on the
It seems to us, from a careful review of all the evidence, that it was properly for the jury to decide whether plaintiff’s injuries were caused by the negligence of the defendant’s driver, and also whether the plaintiff was free from, contributory negligence. These questions were submitted to the jury by the-learned trial judge in a charge in which he clearly laid down the law applicable to case's of this character. The jury were charged that “it was plaintiff's duty to be attentive not only to what was in front of him, but also to-be attentive to what was taking place in the rear. It was his duty to look, back occasionally to see whether a car was approaching or not, and if he saw a car approaching, or was warned of a car approaching, then it was his duty,, seasonably, and as soon as he could properly, to turn off the track, so that the-driver of the car would not be compelled to stop orbe delayed; and the driver-of the car had a right to assume that Quinn would turn off.” This, certainly, was a clear exposition of the duty that the law required of plaintiff. The duty-of the driver was equally well defined. The jury having found on these questions in favor of the plaintiff, we can see no reason for interfering with the-verdict.
The learned counsel for the appellant requested the court to charge that, “if" Quinn willfully obstructed the passage of the car, he is guilty of contributory negligence, and cannot recover.” A question arose as to the meaning of the-word “ willful” as there used, which counsel proceeded to interpret, and thereupon the court refused so to charge. The court had already substantially charged as to the duty of the plaintiff to turn out of the track, and that a failure on his part to perform that duty would constitute contributory negligence. This, we think, more than covered the defendant’s request, at it did, not limit plaintiff’s duty too “willful” obstruction of the passage of the car. There was no evidence in the ease as to the condition of Twentieth street on the right-hand side of the track,and the request of the defendant’s counsel to-charge that the presumption is that the condition of the road-way was sufficient to enable plaintiff to turn to the right was properly refused. No such, question was involved in the case, and the court was not therefore called, upon to charge as requested. The other exceptions in the case are not tenable, and do not seem to call for any discussion. Judgment and order denying; motion for new trial affirmed, with costs.
