Ray v. Interurban Street Railway Co.

Bischoff, J. The evidence of the plaintiff’s exercise of care, when crossing the street at the point where the accident occurred, was slight, and while the jury might ’have absolved him from negligence, taking the most favorable view which was possible, the case could well have been decided against him unless a very liberal view of what constituted reasonable care was adopted. The charge of the justice did not bring out the rule that contributory negligence, however slight, would defeat the recovery, and counsel for the defendant, therefore, requested the instruction that “ if the jury find that the plaintiff was guilty of the least bit of negligence contributing to the accident their verdict must be for the defendant.” The justice refused so to charge, saying, “ Hot the least bit of negligence. I think I have covered that in my charge. * * * If you find both the plaintiff and defendant’s motorman were negligent, the defendant is then entitled to your verdict. On the question of degree of negligence I will let the jury say.” This withdrew the legal proposition that any contributory negligence whatever, however slight, would preclude a recovery, assuming that the proposition was generally involved in the charge that the negligence of both parties would call for a' verdict for the defendant, and the jury may well have understood that the plaintiff, although slightly negligent, could still have the verdict which they rendered. Hpon the close question presented, the submission of the case with this form of instruction was clearly prejudicial and the exceptions taken call for a new trial. There is no question that the defendant was entitled to an instruction [636] such as was requested (Reynolds v. Third Ave. R. R. Co., 8 Misc. Rep. 313), and, for the error noted, the, judgment must he reversed and a new trial ordered, with costs to appellant to abide the event. Freedman, P. J. and Gildersleeve, J., concur. Judgment reversed and new trial ordered, with costs to appellant to abide event.