72 N.Y.S. 1080 | N.Y. App. Div. | 1901
This action arose out of a collision between one of the defendant’s electric cars and a coach driven by the plaintiff’s intestate, who was thrown from his seat and instantly killed. The collision occurred on Fulton street, in Brooklyn, near
The verdict in favor of the plaintiff is sufficiently supported by the evidence, and we are not convinced-that the award of $15,000 damages represents more than the healthy and vigorous life of this coachman (a man but 36 years old) was worth to his wife and seven children. See Schmitt v. Insurance Co., 13 App. Div. 120, 43 N. Y. Supp. 318. A few of the exceptions, however, present questions which ought not to be passed upon without acquainting counsel with our views in respect to them.
The court charged'the jury that, “in the absence of express notice to the contrary by the circumstances, the deceased was entitled to presume that the car would be moved up to the street intersecting under a reasonable state of control, so that it might be readily stopped in case of emergency, to give him an opportunity to get over in safety.” The appellant insists that this instruction was erroneous, because tantamount to saying that the motorman was bound to have his car under such control that it could readily be stopped in case of an emergency'which the plaintiff’s intestate had himself created. Such does not seem to us to be the fair import of what was said by the learned trial judge. The plain meaning was that the driver of the coach, unless advised to the contrary by the situation, might properly assume that the motorman of a car approaching an intersecting street would exercise reasonable care to have his car under such a state of control as to be prepared for emergencies; and this does not seem too strong a statement of the measure of prudence required by the law. Buhrens v. Railroad Co., 53 Hun, 571, 6 N. Y. Supp. 224, affirmed in 125 N. Y. 702, 26 N. E. 752.
In another part of the charge the jury were instructed that there was no paramount right of way for either the railroad company or the driver of the carriage, but that their rights were exactly equal. There was no error in this, in view of the character of Gates avenue, as a practical continuation of Clermont avenue. “At intersecting streets, or a practical continuation of a bisecting street, the rights of a car and a crossing vehicle are equal.” Hewlett v. Brooklyn Railroad Co., 63 App. Div. 423, 71 N. Y. Supp. 531.
When about to give an instruction requested by counsel for the defendant, and assented to by counsel for the plaintiff, the learned judge said to both, “I will charge it, although I do not think it is sound.” Whatever harm might otherwise have been caused by this statement was averted by its subsequent explicit withdrawal, and the express direction to the jury that they must follow the proposition of law as charged. The prompt and clear correction of the error renders the exception unavailing.
Finally, exception was taken by the défendant to the court’s re
Judgment and order affirmed, with costs. All concur.