Kerin v. United Traction Co.

Chester, J.: The action was for negligence. The case was submitted to the jury by the court under the rule of law that notwithstanding negligence upon the part of the plaintiff, he might nevertheless recover if the defendant after such negligence occurred knew it or could by [315] the exercise of ordinary care have discovered it in time to have avoided the infliction of the injury. The plaintiff was riding near the defendant’s track in a one-horse open grocery wagon driven by one Barringer, a servant of his, when both were injured by a car operated by the defendant running into tlieir wagon at the rear and throwing them from their seat. The accident happened in broad daylight on a straight level street. The car had followed the wagon for a distance of about six hundred feet before the collision occurred. There was a sharp conflict in the evidence as to whether or not the motorman sounded his gong as a warning to the ■ plaintiff’s driver, and there was evidence that he saw that the car was approaching from the rear. The -court charged the jury without exception that Barringer was the agent of the plaintiff, and that if- he saw the approaching car his knowledge was imputable to the plaintiff.. But the court refused to charge at the request of defendant’s counsel that if the jury find that Barringer saw the car approaching then it was unimportant if the bell was not sounded. The failure to charge as requested in this.respect was error, as the only object of sounding the bell was to- give a warning of the approach of the car, and if Barringer saw the car approaching no warning was necessary. (Thompson v. Metropolitan St. R. Co., 89 App. Div. 10, 12.) We cannot say that-the jury was not misled to the prejudice of the defendant by this failure to charge and think that there must be a new trial. The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event. Cochrane, J., concurred; Kellogg, J., concurred in result; Smith, J., dissented; Parker; P. J., not sitting. Judgment and order reversed and new trial granted, with costs to appellant to abide event.