Opinion
January 26, 1906.
Bayard H. Ames, for the appellant.
Alfred C. Cowan, for the respondents.
On the morning of the 23d day of June, 1900, Mr. Truley, the plaintiff in the second entitled action, was in the employ of Mr. Murphy, the plaintiff in the first entitled action, in charge of a dump cart and team owned by his employer, and while driving westerly along Ninety-eighth street and crossing the north-bound track of the defendant in Third avenue a north-bound car collided with the vehicle personally injuring Mr. Truley and seriously injuring the horses and damaging the wagon.
At the close of the charge, in which the jury were fully and properly instructed upon the law, the attorney for the plaintiff evidently desirous of obtaining from the court a binding instruction to the jury that certain specific facts and acts if found would, as matter of law, free his client from the charge of contributory negligence, requested the court to charge the jury "that in the event that they find that the plaintiff Truley drove on the track and that his horses were on the track, going on the track when this car was about, as he testified, from 75 to 100 feet away, that there was no negligence on the part of Truley." The court so charged and the defendant excepted. The court thereupon said: "That is, if the fact be as you state — if he was driving on the track when the car was 100 feet away — I charge that it was not negligence on his part." Counsel for plaintiff not content with this endeavored to get the court to further limit the function of the jury by an instruction, "that if the jury come to the conclusion that he drove on this track while it was 50 feet away, that that would not be negligence." To this the court replied: "I decline to so charge. I leave it to the jury to say whether, under all the circumstances, it was negligence." The record before us does not show that Truley testified as stated in his attorney's request to charge. The record shows that he testified, in substance, that he looked up and down Third avenue as he reached the line of the sidewalk in that avenue and proceeded on; that a car passed to the south just as his horses "entered on the track," and then he saw a car coming below Ninety-seventh street; that when the horses were in the middle of the track the car was 150 or 200 feet away. The evidence presented in behalf of the defendant tends to show that the horses were driven onto the track just in front of the car. It was, therefore, competent for the jury to find that Truley drove upon the track, as stated in the request, when the car was only 75 feet away. The horses were drawing a heavy load of sand up a slight grade and moved slowly. They were not driven across the track at right angles. Truley intended to drive down the westerly side of Third avenue. There was an elevated railroad pillar in the center of the crossing. Truley drove onto the track diagonally toward the south, passing close to the south of this pillar. This course lengthened the distance that he would have to go to clear the track and brought him nearer the approaching car. In view of all these circumstances it cannot be held as matter of law that he was free from contributory negligence, if he drove upon the track when the car was only 75 feet away. The jury might have found that he should have seen that the car was approaching at such speed that it could not have been stopped after the motorman discovered that the driver of the horses was asserting a right of way over the car. Moreover, the request charged eliminated from the consideration of the jury the driver's conduct after getting upon the track. It will not do to say that the error was cured by the remarks of the court in refusing to hold as matter of law, as requested, that the jury must find the driver free from contributory negligence if the car was 50 feet distant when he drove onto the track. These remarks had direct reference to the request relating to 50 feet. If the court intended to withdraw the former charge it should have been so done that every juror would understand it. That cannot be affirmed on this record.
It follows, therefore, that the judgment in each case should be reversed and a new trial granted, with costs to appellant to abide the event.
O'BRIEN, P.J., INGRAHAM, McLAUGHLIN and HOUGHTON, JJ., concurred.
Judgment in each case reversed, new trial ordered, costs to appellant to abide event.