Bittner v. Crosstown Street Railway Co.

Gray, J. If it were not for the testimony which was given by the witness Toms upon the trial, it would not be possible to say that there was any evidence upon which negligence *80 could bo predicated of the defendant. The history of the occurrence shows that the deceased heedlessly ran in front of the car and in such close proximity to it, as to render its striking him a certain occurrence. There is no conflict in the testimony with respect to the principal facts. The boy started to cross the street in the middle of the block, when a vehicle was proceeding between him and the car tracks; which, from its peculiar construction, precluded a view beyond it. Bunning upon an angle across the street, he passed around the horses’ heads, without looking for, or apparently seeing, the approaching car upon the other side of the wagon. He was familiar with the locality and the evidence warranted the inference that he was quite capable of taking care of himself, at least, to the extent demanded by the occasion. He was on his way from his sister’s residence to his grandfather’s, upon the other side of the street; as he had been in the habit of doing. Except for the testimony of Toms, that the car was proceeding at a rate of from twelve to fifteen miles an hour; that, after it had passed over the boy’s body, it went as much as two or three times its length before it wTas stopped, and that then the boy was still living and was endeavoring to raise himself up from the ground, when the car backed down over him and, then, was impelled forward and again over him the third time, there would be no ground whatever for saying that any question was left open for the jury to pass upon, with respect to the conduct of the motorman. Toms’ evidence was so shaken as to its credibility by the other testimony in the case, that it became of the highest importance that the jury should be so carefully instructed by the trial judge upon the law applicable to the facts, as that there should be no room for a belief that they might have been misled. There was no negligence in the mere fact of the car running at a high rate of speed. Mo law regulated that, and it was for the jury to say, in view of the surrounding conditions at the time, whether such a rate of speed, if they believed Toms’ testimony about it, was excessive and, therefore, dangerous under the circumstances. *81 While we think the evidence to show negligence in the motorman was of the very slightest character and barely, to be relied upon, in view of the other testimony and of the probabilities of tlie situation, we will concede that it may have been sufficient to raise a question for the jury, and we will proceed to consider the question in the case upon which the judges differed at the General Term. That question arose upon a request made by the defendant that the jury should be instructed, “ that the defendant is' not responsible for the error in judgment, if there was any, on the part of the motorman, in the management of the car after it struck the boy.” The trial judge ruled upon this request as follows : “ I have already charged you upon this proposition.” Referring to the portion of his charge, to which'he must have referred, it reads as follows : “ I may say, if the defendant was entirely free from fault in the first instance, or if the bo)T was guilty of negligence in running upon the track in the way he did, and the car had passed over him, a number of feet beyond him, and the boy was in jured in the legs, as it is claimed by one of the plaintiff’s witnesses, and was attempting to get up from the track, and the motorman ivas careless in the management of his car by running back upon him, and then killing him, the question of whether or not the boy was guilty of negligence in the first instance would be of no importance in that condition of things, and the plaintiff could recover, notwithstanding the boy was negligent in first going on the track.” The defendant was entitled to have the jury clearly instructed, that an error in the exercise of judgment by the motorman would not make the defendant liable for the results in the management of the car, in the emergency which occurred after the deceased was struck down, and the charge did not cover that point; or, at least, not in such exact language as, in our judgment, to make it perfectly clear to the jurors’ minds. To instruct them that, if the motorman was careless in so managing his car as to run back upon the boy, the plaintiff might recover, was not the clear equivalent of an instruction that, if the motorman erred in judgment in what he did after the car *82 struck tlie boy, the defendant would not be responsible for that error of judgment. The evidence in the case would have warranted the jury in finding that the deceased was guilty of contributory negligence, in placing himself directly in front of the passing car, and that the motorman was not guilty of any negligence in striking him. If they should have reached that conclusion and were then brought face to face with the subsequent situation, after the boy had been knocked down and run over, they could only return a verdict for the plaintiff upon the basis of some act of negligence then occurring on the part of the defendant’s servant, the motorman, by which the accident was aggravated. If they could believe the evidence of the witness Toms, that the car had passed so far beyond the boy and then, while he was still alive, was backed down upon him and, again, was sent over him, they could, perhaps, say that the motorman was careless in the management of his car at the time and that, through such carelessness, the boy was in fact killed. But if they believed that the motorman was endeavoring, in the exercise of his judgment, to prevent injury to the boy, then there was no carelessness on his part, but merely an error of judgment; for which the defendant could not be held responsible. Upon the evidence, it appears that the motorman was confronted with a sudden emergency and it should have been distinctly stated to the jury that if, in what he did, he used his judgment, the defendant was not responsible; even if it was an error which brought about the lamentable results claimed. Even the failure to exercise the best judgment would not be evidence of negligence. ( Wynn v. C. P., &c., R. R. Co., 133 N. Y. 575.) Judge Hatch, in his opinion at the General Term, has very fully reasoned out the proposition, and it is not necessary for ns to say more than we have said. For the reasons given the judgment should be reversed and a new trial ordered, with costs to abide the event. All concur. ■ Judgment reversed.