80 A.D. 24 | N.Y. App. Div. | 1903
Lead Opinion
The plaintiff, a passenger on one of the defendant’s south-bound cars, was injured by the car colliding with a truck owned by the defendant Biglin. The collision occurred at or near the intersection of Madison avenue and Forty-second street. The car was about thirty-seven feet in length and was equipped with two fenders, one in front and one in the rear, the front one at the time being down and the rear one raised and fastened to the car. The car passed from Madison avenue into Forty-second street on a curve which commenced over thirty feet north of the westerly curb line of Forty-second street, and at this point the distance between the westerly rail and the westerly curb line of Madison avenue was a little over thirteen feet. The rear of the car, as it passed around the curve, overhung the westerly track considerably more than did the front of it, but at no point was the space between the westerly rail and the westerly curb line of Madison avenue less than eleven feet four inches, which is near the commencement of the curve. From this point on, while the overhang of the rear fender increased,
The appellant asks for a reversal of the judgment principally upon the ground that the evidence was insufficient to justify a finding to the effect that the collision was due to its negligence. It having undertaken, for a consideration, to convey the plaintiff to the point of her destination, it was obligated to use the highest degree of care, so far as she was concerned, to the end that she might reach there in safety, and whether or not it performed this obligation, was, we think, under the facts presented a question for the jury.
It is true that when the signal was given to the motorman to proceed with the car, he, being upon the front of it, and observing that there was room for the car to pass the truck in safety, had a right to assume that the driver of the truck, in proceeding northerly on Madison avenue, would keep away from the car and thus prevent a collision. There was room for him to do so. The truck, as already indicated, was only eight feet in width and there was a clear space
We are, however, of the opinion that the judgment must be reversed for an error in the charge. The court charged the jury that: “ If you find that the motorman, knowing that this truck was approaching his car and about to turn into Madison avenue going north and on the west side of the avenue, did not use that ordinary care and prudence that a man of his position and his standing in life should have exercised, then I think the plaintiff has established, by what would be known in the law as a fair preponderance of evidence, the negligence on the part of the defendant company, through its motorman in handling that car.” The charge as made assumed that the mere turning of the truck into Madison avenue called upon the motorman to anticipate, notwithstanding the space between the car and the westerly curb line of Madison avenue, that there might possibly be a collision between the truck and the car, and there is
Not only this, but the instruction was erroneous in that the statement was made to the jury, at least in effect, that the omission to exercise ordinary care and prudence on the part of the motorman would render the appellant negligent, and by reason thereof liable, even though such lack of ordinary care and prudence did not in any way contribute to the accident itself. There is nothing to show that the motorman was negligent in this respect; but even if that fact be assumed, it is of no importance unless his negligence was the proximate cause of or in some way contributed to the accident (Laidlaw v. Sage, 158 N. Y. 73), and under the instruction the jury could find the appellant liable for some neglect on the part of the motorman, even though his act had nothing whatever to do with the collision.
It follows, therefore, that the judgment and order appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.
Van Brunt, P. J., and Ingraham, J., concurred in result; O’Brien and Laughlin, JJ., dissented.
Dissenting Opinion
I dissent. The plaintiff was bound to prove by a fair preponderance the negligence of the defendant. By the language used in that part of the charge, for using which it is proposed to reverse
Lattghxin, J., concurred.
Dissenting Opinion
I dissent from the reversal of the judgment in this case. The relation of common carrier existed between the plaintiff and the defendant which bound it to a high degree of care in transporting her safely. She was injured by a collision between the rear end of the car and the baggage truck while the car was passing around the curve where the rear end swung several feet over the rail. The doctrine of res ipsa loquitur is applicable and the collision and attendant circumstances raised a presumption of negligence against the defendant in favor of the passenger. (Loudoun v. Eighth Ave. R. R. Co., 162 N. Y. 380, 386.) Both the conductor and motorman were chargeable with knowledge of the extent to which the ends of the car would overhang the track in passing around this curve and with like knowledge that as the car was entering upon, but before it was fully upon the curve, the rear end in passing around the curve would swing out at a given point further than the forward end in passing the same point; and that it did not follow that because the front would pass a vehicle or other obstruction without a collision that the rear end would also. The evidence justified a finding that the truck did not approach any nearer the track than it was at the time the front end of the car passed it. It was, therefore, a question of fact for the jury to determine whether the motorman was guilty of negligence in not foreseeing that on account of the greater overhang of the rear end of the car a collision would occur. If the motorman was negligent in this regard there could be no question but that the negligence was a proximate cause of the accident and there was no error in the charge considered erroneous in the prevailing opinion.
If the motorman exercised that degree of care, caution and vigilance which an ordinarily prudent person would have exercised
What the trial justice said in the charge quoted in the prevailing opinion relating to the preponderance of evidence was not prejudicial. The charge would have been entirely accurate by eliminating what was said on that subject. After stating in substance that if the motorman did not use ordinary care and prudence to avoid the the collision, the court said : “ Then I think the plaintiff has established, by what would be known in the law as a fair preponderance of evidence, the negligence on the part of the defendant company through its motorman in handling that car.” If the jury found that the motorman was guilty of negligence which caused the collision, it necessarily followed that the defendant was responsible for that negligence ; but in determining whether the motorman was negligent or not the jury should have been instructed, and doubtless would had a request been made, that the burden of establishing that proposition by a fair preponderance of the evidence rested upon the plaintiff. The charge was not erroneous, and if misleading in regard to what constituted a preponderance of evidence, it was the duty of the counsel for the appellant to bring it to the attention of the court by some appropriate suggestion or request; and, consequently, the exception affords no ground for a reversal of the judgment.
O’Brien, J., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.