Venuta v. New York

Willard Bartlett, J.: We are of opinion that this judgment must be reversed on account of error in the charge. The suit grows out of a collision between one of the cars of the New York, Westchester and Connecticut Traction Company and a wagon upon which the plaintiff was riding. Speaking of the relative rights and duties of the motorman of the car and the driver of the wagon, the learned trial judge told the jury, among other things: “ It is the duty of the motorman, of course, to carry his passengers with reasonable expedition. That is what these companies are for. Their business is not to lally-gag from here to Mount Vernon when you get in their cars, but to carry you with reasonable expedition. * * * The car has the right of way over the track. The law gives it the right of way. Nobody has the right to be there when the car comes up. Anybody there owes it a duty to be off before the car comes up, or to put it more precisely, the law requires them to use reasonable prudence to be off when'the car comes up. You have not the right even to make a car slow up., You have no such right whatever. You have not the right to,get on a railroad track and slow a car up. It is your duty to use reasonable care to be off by the time the car comes up, because the car is carrying the public. There [563] may be fifty people in the car, or thirty, or twenty who are not to be stopped by one person who gets on the track. On the contrary, that one person’s duty is to use reasonable care to be off. He has a right to be there, but with that right goes the duty to be vigilant to be off before the car comes up.” Exception was duly taken to this portion of the charge. It was certainly error to instruct the jury generally to the effect that a person on the highway has no right to be on a street railway track when a car comes up, and no right whatever to make a car slow up. In every case where a person on a street is run over by the wheels of a street car, he must be on the track when the car reaches him ; but if it is the law that he has no right to be there, as charged by the learned court in this case, there could never be any recovery on the part of the plaintiff in an action growing out of an accident of that character. The only ground on which this error can be disregarded is that the trial judge corrected it when he said that “ to put it more precisely, the law requires them to use reasonable prudence to be off when the car comes up; ” or when he said, further : “ He has a right to be there, but with that right goes the duty to be vigilant to be off before the car comes up.” But in neither of these qualifications is there anything which distinctly negatives the idea previously conveyed to the jury that a person in the way óf a car cannot rightfully be at the point of. collision when the car reaches him. There is no disaffirmance of that proposition in the statement that a person so situated must be vigilant to get off the track before the car comes up to him. Of course he miist, if he has no right to be there at all at the time when he is struck. A charge to a jury is intended to tell laymen what are the rules of law applicable to the determination of the case which they are called upon to decide. The jurymen in this case were instructed in the most positive manner as matter of la.w that a traveler on the highway who claimed to have been injured by collision with a street railroad car had no right to be at the spot where the collision occurred at the time when it occurred. This instruction was emphasized by reference to the employment of the car in the service of the community as a carrier of twenty, thirty or perhaps fifty passengers, whose convenience seemed to impress the court as in some way entitled to more consideration than that of other travelers on the highway. We cannot [564] doubt that this portion of the charge was heeded by the jury, and we cannot find that it was subsequeritly withdrawn or qualified so as to cure the error. The judgment must, therefore, be reversed. Goodrich, P. J., Hirschberg and Jemes, JJ., concurred; Woodward, J., read for affirmance.