45 N.Y.S. 124 | N.Y. App. Div. | 1897
The son of tire deceased and the deceased were both upon the wagon when the accident happened, and had been for some time prior thereto. Both were engaged in moving goods, for which purpose the' horse and vehicle were used, and they were so occupied upon that day. They were, therefore, engaged in a joint occupation and venture, and each became liable for the negligence of the other. (McCormack v. Nassau Electric R. R. Co., ante, p. 24.) If either were negligent in a manner contributing to the injury, it would furnish a sufficient answer to plaintiff’s- right to recover. '
From the evidence the jury were authorized to find that the deceased and his son occupied the same seat upon the wagon, the latter driving the horse. They were driving north along Bay street, in Tompkinsville. In this street the defendant has double tracks. The wagon was being driven between the rails of the easterly track. In front of the wagon was a horse and buggy, and in front of that was a covered double truck which was proceeding at a very slow rate. These vehicles had occupied their respective positions for a distance of about 800 feet. As stated upon the argument, the space to the right of the easterly track, between it and the curb, was not wide enough to permit of the wagon passing by the other vehicles upon that side. The double truck in front had its back curtain down, and the vehicle and top prevented a view of the track and approaching cars on the westerly side. The driver of the buggy, after proceeding the 800 feet, turned out to the west and drove ahead of the
The case made by the defendant upon this point was to the effect that the horse and wagon were turned on to the track when the car was only ten feet away: If this were the fact, then the driver was clearly guilty of contributory negligence. But upon this point the evidence was conflicting, and we are unable to say, as a legal conclusion, that the evidence of the defendant was controlling upon this point, or that the evidence of the plaintiff was improbable or so inconsistent as to have warranted the court in deciding the question. It became a matter for the jury to determine, and the court submitted the question to them in a charge entirely unexceptionable, and their finding is conclusive upon us. • If the car was 125 feet away when the wagon was turned into the westerly track, and the jury were so authorized to find, then, upon the testimony of the defendant as well as the plaintiff, it was clearly within the power of the motorman to stop his. car and permit the horse and wagon to
No error was committed in the court’s refusal to charge the jury, in the language of. the counsel, that the jury could not find that the bell upon the car was not rung. The request proceeded upon the assumption that plaintiff’s evidence upon this point was negative merely, that the witnesses did not hear the bell, and that the defendant’s evidence was positive and affirmative that the bell was rung. The evidence in the case did not warrant the charge requested. The testimony given by the son was to the effect that he gave the matter attention, and that he.heard no bell; that-he listened for it; that it did not ring until just before the wagon was struck. Two other witnesses, swear that they heard no bell, and each was in a position to hear the bell if it was rung. This, we think, was sufficient to justify the court in refusing the charge requested. (Greany v. Long Island R. R. Co., 101 N. Y. 419.)
We find, no- ground warranting a disturbance of this judgment; it should, therefore be affirmed, with costs.
All concurred, except Bartlett, J., not sitting,
Judgment and order unanimously affirmed, with costs.