Opinion
April Term, 1897.
James C. Church and F.S. Angell, for the appellant.
Morris Whitehouse, for the respondent.
The evidence tended to establish that when the driver of the ice wagon started his team to cross the street and tracks of the railroad, defendant's car, which inflicted the injury, was upon the north side of the street, and distant from the point where the team started to cross about 133 feet. The car at this time was stationary, or just upon the point of starting. There was nothing between the ice wagon and the car to obstruct the vision of the motorman, and the relative situation of wagon and car was plainly visible. The movement of the ice wagon was such that if the motorman had observed it, and there was no reason shown why he should not, he would have been apprised that the intention of the driver was to turn the wagon in the street. That the wagon was a cumbersome affair and needed considerable space to turn around in was also apparent. At the time when the car started it was clearly under the control of the motorman, and there existed no reason why he should not have continued to so operate it as to be able to stop, practically upon the instant, in view of the apparent obstruction in the street created by the wagon. In fact, the car was so operated as to come in contact with the rear end of the wagon, inflicting the injury resulting in the subsequent death of plaintiff's intestate, and from such fact and the circumstances the jury was authorized to find defendant guilty of negligence.
It also appeared from the testimony of the driver that when he got upon the wagon he looked and saw the car standing on the north side of Twenty-fifth street, and he then started to swing around over the street. The jury were authorized to find, from the existing circumstances, that the driver of the wagon was justified in concluding that it was safe for him to attempt to turn the wagon in the street, and to exonerate him from any negligence in connection with such act.
The deceased jumped upon the rear step of the wagon, that being his accustomed place when the wagon was in motion. What his opportunities for observation were from this position is not clear from the testimony. But if his opportunity for observation was equal with that of the driver, or better, there was nothing in the then condition of the car that would create an apprehension in his mind that it was unsafe for him to get upon the wagon. At least the jury was authorized to so find. Nor do we find in the record controlling evidence which would justify the court in determining, as matter of law, that anything which the deceased thereafter did or omitted to do constituted contributory negligence upon his part. The jury were, therefore, authorized to find that the deceased was free of negligence contributing to the injury. The questions are not left to mere inference, although that would be sufficient if it was legitimately derived from the facts proved. But in this case the relative position of the car and wagon was given, the movements of each from the time each started was described, the position of the persons upon the wagon and their opportunity for observation appeared, as well as the position of the motorman in charge of the car and the movement of the car itself. The jury, therefore, had the facts before them and they were authorized to determine from those facts these questions, even though there was no affirmative proof as to just what the deceased did after taking his place upon the wagon.
It is insisted, however, that the court erred in refusing to charge the jury, upon request of the defendant, that "if they find that the accident was occasioned in part by the negligence of the defendant, and in part by the negligence of Simms, the driver of the ice wagon, that then the plaintiff cannot recover." An exception was taken to the refusal. The argument upon this branch of the case is based upon the claim that Simms, the driver of the wagon, and the deceased were engaged in a joint venture and that, therefore, the negligence of the former was imputable to the latter. There was a view of the evidence upon which the jury might have found that the driver was guilty of negligence, in consequence of which the defendant had the right to have considered the legal effect of such negligence, if the jury so found, and to have them properly instructed upon the subject of that relation. And the fact that the jury could or may have exonerated the driver of negligence does not change the right of the defendant to have the charge made, if legally entitled thereto, for the jury may have found the driver in fact guilty of negligence and exonerated the deceased upon the ground that it was not imputable to him. While this is true, we think no legal error was committed in refusing the charge. The ice wagon was the property of the Knickerbocker Ice Company, and the driver of the wagon and the deceased were in the employ of that company, engaged in the delivery of ice to its customers. Simms had charge of the wagon and the deceased was his helper, having no other duties to perform than the service of ice to customers and having no will in or control over the management of the team and wagon. This is not contended against. But claim is made that in connection with this business these two men were engaged in a joint venture of their own in the ice business. The testimony upon that subject is quite meagre and leaves the matter in much doubt. Simms states that the deceased "got seven and a half off the company, and then on a Saturday night I would throw him $5 or maybe $4. Q. You bought ice from the company, which you disposed of, and paid them so much? A. Yes, sir; he helped me with that and for that I paid him extra. * * * Q. You say you used to toss him three or four or five dollars on a Saturday night; I suppose you mean by that, that if you had a good week's business, you would give him five dollars, and if you didn't have quite as good, you would give him three; was that it? A. Well, that is about it. Q. That is, if the business that you had during the week was good, of course there was more for you to divide, and, if it was poor, why, there was less for you to divide? A. Yes." This testimony is far from establishing to a certainty that there was a joint venture. Simms says he bought the ice and the deceased helped him, for which he paid the deceased extra. If he did well, there was more to divide; if not, less. If the use of the word "divide" conveys the idea that both were jointly interested, there might be some claim of a joint venture. But it is entirely consistent with the idea of payment for service, as first stated. We may have our suspicion how this part of the business arose and in what this venture consisted, in view of the fact that the employment of the men was to deliver ice to the customers of the ice company, for which they were paid wages. But we are now considering the effect of this testimony, and can well see that the jury might have found that this business was the sole business of Simms, in which the deceased had no interest, and that there existed neither the relation of principal and agent or joint interest between the parties. This question became, therefore, one of fact, and in order to raise the question which is now sought to be presented the court should have been requested to submit it to the jury, and then, if the jury found that there was a joint venture, the request, which was made and refused, would have become proper. No such request, however, was made, and the question now sought to be presented by counsel is not before us, and no error is found in the refusal of the court to charge as requested.
We do, however, reach the conclusion that the verdict in this case is excessive. The reason why we reach this conclusion is that the pecuniary loss to the next of kin does not in any fair view reach the amount of the verdict. It scarcely aids to the settlement of any fixed rule to set out our reasons in detail upon this question, as each case must stand upon its particular facts.
The judgment in this case should be reversed and a new trial granted, with costs to abide the event, unless plaintiff stipulates within twenty days to reduce the recovery to the sum of $8,000, and proportionately the interest thereon and the extra allowance, and if plaintiff so stipulates, the judgment as modified is affirmed, without costs to either party.
All concurred, except BARTLETT, J., not sitting.
Judgment and order reversed and new trial granted, costs to abide the event, unless plaintiff stipulates within twenty days to reduce the recovery to the sum of $8,000, and proportionately the interest thereon and the extra allowance, and if plaintiff so stipulates, the judgment as modified is unanimously affirmed, without costs to either party.