| N.Y. App. Div. | Jul 1, 1898
An examination of the evidence in this case, and the rulings of the trial court, disclose no reason why the verdict of the jury should be set aside, and it follows, of course, that the judgment must be affirmed.
This was an action for personal damages sustained by the plaintiff by a collision with one of the cars of the defendant during the street railroad strike in February, 1895. The plaintiff was driving a truck upon one of the tracks of the defendant’s street railroad in the city of Brooklyn, following a coal cart. There was evidence to how that the street was somewhat incumbered by the snow which the railroad had removed from its tracks, and the plaintiff was using the tracks of the company because of this obstruction. Desiring to go faster than the coal cart in front, the plaintiff, acting under the instructions of his employer, who occupied a seat beside him, turned out into the east-bound track of the defendant, intending to drive around the coal cart. Before doing so, the jdaintiff looked along the east-bound track and saw a car approaching some two blocks away, and the car seems to have been approaching at a rapid rate. The evidence of the defendant is to the effect that the motorman saw the wagon turn -into the east-bound track, but supposing the driver intended to cross, the car was allowed to proceed upon its way. While the car was some thirty or thirty-five feet away, the
These facts were placed before the jury with considerable latitude on both sides, and the trial justice charged the jury, clearly stating the law of negligence. There were no exceptions in the case worthy of serious consideration, and the principal point now urged in behalf of the plaintiff is that part of the charge to the jury which says that “ the same degree of care must be exercised by one as by the other,” and to which there was no exception at the trial. We think, had there been an exception, that the court correctly stated the law. The fact that there was a strike in progress was as well known to the plaintiff as to the defendant, and while both had an equal right to be in the highway, the disturbed condition of society and the difficulties under which the defendant was laboring in operating its railroad, did not increase its obligations more than those of the plaintiff.
The trial court, after defining carefully the degree of care which the defendant was bound to observe in operating its cars, stating the rule to be that “ degree of care which a person of ordinary experience and prudence should have exercised to avoid the collision,” gave some further discussion to collateral matters, and, in approaching the question of contributory negligence, said : “ In determining that question you will recollect the same definition, because the same degree of care must be exercised by one as by the other.” This is clearly the law. There is no charge that the defendant could neglect any reasonable precaution, or that it was not, under the circumstances, under obligations to exercise greater care than would be necessary under different circumstances, but simply that both the jdaintiff and defendant were bound to exercise that degree of care “ which a person of ordinary experience and prudence should have exercised to avoid the collision; ” and the question having been passed upon by the jury, and the trial court having refused to grant a new trial, this court can find no warrant for interfering.
The judgment and order of the court below are affirmed, with costs.
Judgment and order unanimously affirmed, with costs.