69 N.Y.S. 147 | N.Y. App. Div. | 1901
The plaintiff, while a passenger in the defendant’s car, was injured in a collision between the car, which was going south on Seventh avenue, in the borough of Brooklyn, and a runaway horse and wagon going east down Berkeley place toward Seventh avenue. The motorman stopped the car before crossing Berkeley place, then started it again, and while crossing the place the car was struck by the horse and wagon. The plaintiff offered evidence to prove negligence of the motorman in failing to see or hear the runaway before starting his car. The jury rendered a verdict for the defendant, and the plaintiff appeals from the judgment thereon entered.
The plaintiff’s first contention is, that there was error in refusing her requests to charge that the defendant’s motorman was obliged to exercise the very highest degree of care to avoid the collision. The examination of this question requires a collocation of the principal charge and the requests! The court charged: “ On the part of the plaintiff it is contended that, if the motorman had used that degree of care and prudence commensurate to the surrounding circumstances at the time of this accident, he must have seen the approach of this runaway horse in time to have avoided the accident, and that he was bound, if he could, to avoid the accident by the exerdise of his faculties to do so. That, gentlemen, of the jury is true. If the motorman could or should, in the exercise of his
The plaintiff requested the court to charge “ that the defendant’s motorman was obliged to use the very highest degree of care not: to put the car into a situation in which it would be exposed to a. collision from the runaway horse.” This request was refused. The plaintiff excepted and requested the court to charge that the motorman “ was. obliged to use a very high degree of care not to put the car in a situation in which it would be exposed to a collision with the runaway horse,” and the court so charged. The defendant, excepting, the court said: “ He was bound to use a degree of care: and prudence,, of course, commensurate with the circumstances of the case.” ■ Both parties excepted to the modification and the plaintiff requested the court to charge, “ That if the motorman was guilty of negligence in putting the car in a situation where it was liable to be exposed to a collision with a runaway horse, then he could not excuse himself by any diligence after it was in such situation and the court so charged. '
"The Court: It is not intended to say if he could by any possi
We may read between the lines that the plaintiff’s counsel feared that a verdict in his favor could not be sustained, as the defendant had excepted to the charge that the motorman was bound to exercise a degree of care commensurate with the circumstances, instead of charging that the care to be exercised must be commensurate with the circumstances, which were, or ought to have been, known to the motorman by the exercise of reasonable care on his part. The charge was so modified at the request of the plaintiff, and of such
The refusal to charge that the defendant was bound “ to use the very highest degree of care,” etc., was justified by the opinion in Stierle v. Union Railway Co. (156 N. Y. 70, 685), where the court cited Unger v. Forty-second Street, etc., R. R. Co. (51 id. 497), and approved the doctrine therein announced. In the Unger case the court said (pp. 501, 502): “ The degree of care which a person owing diligence must exercise depends upon the hazards and dangers which he may expect to encounter, and upon the consequences which' may be expected to flow from his negligence. Railroad companies, whose cars are drawn by steam, at a high rate of speed, are held to the greatest skill, care and diligence in the manufacture of their cars and engines, and in the management of their roads, because of the great danger from their hazardous mode of conveyance to human life in case of any negligence. But the same degree of care and skill is not required from carriers of passengers by stage coaches (Hegemon v. Western Raillroad Corporation, 13 N. Y. 9); and, for the same reason, is not required from the carriers of passengers upon street cars drawn by horses. The degree of care required in any case must have reference to the subject-matter, and must be such only as a man of ordinary prudence and capacity may be expected to exercise in the same circumstances. In some cases this rule will require the highest degree of care, and in others much less.”
Nor does it make any difference in the rule that upon a street car electricity has been substituted for horses. The reasoning still applies, inasmuch as there is a manifest distinction between such cars and steam railroad cars running at high speed. It is not the rule that in every case the motorman is bound to use the “ very highest degree of care ” and diligence, but only such care as is commensurate with the circumstances either as they appeared or could have been observed in the exercise of ordinary care and prudence. In some cases, as was said in Unger v. Forty-second Street, etc., R. R. Co. (supra), this “rule will require the highest degree of care, and in others much less.”
In Keegan v. Third Avenue R. R. Co. (34 App. Div. 297, 300 ; affd. without opinion, 165 N. Y. 622) it was said: “ A rule which qalled upon every driver or motorman, at all times and under all
When, therefore, the court charged, in answer to the request of the plaintiffs counsel, that the motorman was obliged to use a very high degree of care, etc., it properly stated the rule of law applicable to the circumstances.
The other part of the charge objected to in the plaintiffs brief was not excepted to by the defendant and .does not seem to us to be error which requires reversal.
The judgment should, therefore, be affirmed.
All concurred.
Judgment and order unanimously affirmed, with costs.