Opinion
November Term, 1897.
Henry Yonge, for the appellant.
Nathaniel H. Clement, for the respondent.
This action is brought to recover damages for injuries to the person and property, sustained in a collision between the plaintiff's vehicle and the defendant's car. The accident occurred at night. The plaintiff was crossing the defendant's track in the line of an intersecting street. At such an intersection the defendant's car had no paramount right of way. ( Buhrens v. Dry Dock, etc., R.R. Co., 53 Hun, 571; affd. by Court of Appeals, 125 N.Y. 702; Bresky v. Third Avenue R.R. Co., 16 App. Div. 83.) The case was one for the jury, and the motion to dismiss the complaint was properly denied; but we are of opinion that the learned trial court erred in its charge. The defendant asked the court to charge "that the defendant was not guilty of negligence by reason of any failure to ring a gong at the point in question." This the court refused, and left the question of negligence for such failure to the jury. The plaintiff testified that he saw the car 300 feet away. The only object of ringing a gong or bell is to apprise travelers of the approach of the car. As the plaintiff was already aware of the approach of the car, we cannot see that a failure to ring the gong was a material element in the case, and the jury should have been so instructed. ( Daniels v. S.I. Rapid Transit Co., 125 N.Y. 407.)
The judgment appealed from should be reversed and a new trial granted, costs to abide the event.
All concurred.
Judgments and orders reversed and new trials granted, costs to abide the event.