193 A.D. 329 | N.Y. App. Div. | 1920
There is no dispute that the plaintiff was seriously injured in a collision between one of the defendant’s street cars and a sleigh in charge of the plaintiff in the early morning of December 24, 1917. The plaintiff was employed to drive a delivery sleigh for a bakery located in Albany, and on the day in question had taken on his load early in the morning, and at about half-past five o’clock in the morning had reached a point on the viaduct in Rensselaer used by the defendant, in common with the public, for the operation of its cars. He entered the viaduct at the southerly end and proceeded north. The snow, it appears from the evidence, was thin on the east side of the defendant’s tracks, which were near the center line of the viaduct, and the plaintiff turned his horse to the westerly side of the tracks. The sleigh was heavily loaded and the horse appears to have been unable to draw the load because of the absence of snow from the viaduct roadway. He came to a standstill with the sleigh covering the westerly. rail of the south-bound track of the defendant. The plaintiff says that he tried to get the horse to pull the load off from the track, but the horse was unable to -start the sleigh. While thus
The question of the defendant’s negligence and of the contributory negligence of the plaintiff were sharply contested upon the trial, and it is practically conceded that there were questions of fact for the jury, which found a verdict in favor of the plaintiff for the sum of $14,000. The defendant appeals from the judgment and from an order denying its motion for a new trial on the minutes.
The defendant urges that the learned trial court erred in its charge to the jury to the prejudice of its rights. The learned court by way of explanation told the jury that it was its duty to use common sense in the determination of the facts; that it was to be guided by its experience — by the experience of the individual jurymen — rather than by the arguments of the lawyers or the dictum of the judge; and it is now urged that this constituted error which should result in the reversal of this judgment. It may well be doubted whether the question now argued was fairly presented to the court at a time or under circumstances which entitle the defendant to a review. Counsel had excepted “ to the charge of the court in regard to the rights of the plaintiff to go over to the wrong side of the road and to get out of the way of the car if he could — whatever you said in that regard,” and then added, not an exception, but that “ I object to that part of the charge in which you said it was the duty of the jury to use common sense, and what you said upon that subject, and also what you said upon the subject of the common sense of the common people, and what you said about the lawyers and judges.” Having objected, counsel then said: “ I ask you. to charge that it was the duty of the plaintiff at the time and place of accident to have attached to Ms vehicle lights visible from the front and rear of his vehicle.” To tMs request the court responded: “Yes, I so charge. There is such a provision now, and I think there was
The court having charged as requested above in reference to the duty of the plaintiff to have lights upon his vehicle, counsel for the defendant pushed the matter further and asked the court to charge “ that a failure to have a light on the plaintiff’s vehicle is prima facie evidence of contributory negligence on the part of the plaintiff.” To this the court responded: “ I so charge. It is not conclusive, however.” Counsel persisted: “ There is no dispute about a light, and therefore as a corollary I ask you to instruct the jury to render a verdict for the defendant.” To this the court responded: “ I decline I charge the jury that the fact that the plaintiff had no light upon his vehicle may be taken into consideration and weighed by the jury in determining whether or not he was negligent, and I will decline to make any other charge on that subject.” To this the defendant interposed an exception, and if the statute (Highway Law, § 329a, added by Laws of 1914, chap. 32, as amd. by Laws of 1915, chap. 367)
We have examined the other errors alleged to have been committed on the trial, but are persuaded that the court did not err in dealing with the problem presented by the evidence.
The judgment and order appealed from should be affirmed, with costs. i
Judgment and order unanimously affirmed, with costs.
Since amd. by Laws of 1918, chap. 258.— [Rep.
Since amd. by Laws of 1918, chap. 540.-— [Rep.