Stierle v. Union Railway Co.

BISCHOFF, J. Plaintiff sued for and recovered damages for injuries sustained by him when a passenger upon a car of the defendant, a corporation engaged in the operation of street cars drawn by horses in the city of Hew York. At the request of the plaintiff, and over the appellant’s exception, the learned trial judge charged “that, in respect to carrying passengers, a railroad company is bound to exercise all the care and skill which human prudence and foresight can suggest to secure the safety of their passengers.” Under the circumstances of many cases, the proposition charged might well have been a correct rule of law. To this degree of care a carrier of passengers is. often held, where the danger of great injury is attendant upon an accident which it would be within the power of the carrier to avoid. Palmer v. Pennsylvania Co., 111 N. Y., at page 492, 18 N. E. 859; Weber v. Railroad Co., 58 N. Y. 462. But the rule declaring the measure of “ordinary care” required of a carrier operating a steam railroad upon which cars are propelled with great velocity is not necessarily applicable where the act of carriage is performed through the- agency of a street car drawn by horses. Unger v. Railroad Co., 51 N. Y., at page 501. ' And in this case the facts shown did not appear to call for the application of any such stringent rule as that laid down. We cannot, by any means, hold that this instruction to the jury did not operate to the appellant’s prejudice, and there must be ánother trial of the cause.” Judgment reversed, and new trial ordered, with costs to appellant, to abide the event. DALY, C. J., concurs.