Connor v. Metropolitan Street Railway Co.

McLaughlin, J.: This action was brought to recover damages for personal injuries -alleged to have been caused by defendant’s negligence. The plaintiff, on the 4th of August, 1899, then about fourteen years of age, was injured by a collision between one of defendant’s cars and a truck on which he was riding. The testimony on the part of the plaintiff, so far as it relates to the collision, tended to -show that the plaintiff sat on the rear of the truck, which was going in a northerly direction on defendant’s tracks, and while in this position, one of the defendant’s cars came up behind and collided with it; and before he had any chance to escape and without any fault on his part, he sustained the injuries complained of. The testimony on the part of the defendant tended to show that as the car came up behind the truck, the motorman of the car signaled for the ■driver of the truck to leave the tracks, and in obedience thereto he did commence to leave the tracks; that while in the act of doing so the horse attached to the truck, or else the truck itself, came into collision with one of defendant’s south-bound cars, and by reason thereof the truck was forced back against and came in collision with the north-bound car, and thus the plaintiff was injured. It matters little which contention be taken as the true one; it is quite [386] clear a question of fact was presented as to defendant’s negligence,, as well as the contributory negligence of the plaintiff, and we should have no hesitancy in affirming the judgment were it not for an error-in the charge. The trial court, at plaintiff’s request, charged the-jury: “ If the north-bound motorman, by the exercise of reasonable care, could or should have seen that there was danger of a collision between the south-bound car and the van, and yet kept his car up to within a few feet of the van, so that the van was driven back onto his car, then he was negligent.” The defendant excepted to the instruction thus given and we think the exception well taken. If the jury found that the facts stated in the request were established by the evidence, then it was for them to say whether or not. such facts constituted negligence on the part of the motorman, taking into consideration all of the facts and circumstances surrounding: the collision. It was error for the court to charge, as matter of law,, that if they found such facts, then the motorman was negligent. (Kellegher v. Forty-second St., etc., R. R. Co., 171 N. Y. 309.). It would seem as though the motorman would have a right to assume, when the driver of the truck started to leave the tracks,, that he would do so in such a way as not to collide with one of the-defendant’s cars going in an opposite direction. This would certainly be the natural inference and one which a reasonably prudent man would have the right to make, and the fact that he acted upon this assumption, by bringing his car close to the truck, so that he-might proceed with it as soon as the truck had left the tracks, did not make him negligent per se. At most it was for the jury to-say whether or not his act was a negligent one. That the defendant was prejudiced by this instruction was sufficiently evidenced by the verdict rendered. For the error thus committed the judgment and order must be-reversed, and a new trial ordered, with costs to the appellant to abide the event. Van Brunt, P. J., and Hatch, J., concurred; O’Brien, J.,. dissented.