Lamline v. Houston, West Street & Pavonia Ferry Railroad

Allen, J. — [After stating the facts as above.] — The negligence charged against the defendant in this case was that the driver,- having seen the hail of the plaintiff and stopped his car for the purpose of allowing her to get on, suddenly started it while she was in the act of boarding the car. If it is true that the driver did see the plaintiff and stop the car for her and started while she was attempting to get on, the defendant would be chargeable with negligence. It is equally true that if the driver was exercising the care required of "him by the law, and did not see the plaintiff, and had no knowledge that she was in the act of boarding the car, the defendant could not be held liable. The driver, in looking out for persons desiring to become passengers, was bound to exercise that ordinary care which a person ought to observe under the particular circum [147] stances in which he was placed. Ordinary care is that decree of care which a person of ordinary prudence is presumed to use under particular circumstances, to avoid injury to others, and is in proportion to the danger to be avoided. It has relation to the business in which the party is engaged. If the driver of this car was exercising this care and did not see the plaintiff, his duty in this regard was performed. Therefore the request to charge presented a sound proposition of law directed to the circumstances of the case as disclosed by the evidence. As the instruction asked for was correct in principle, and presented a question of law bearing upon the evidence, the defendant was entitled to have it given to the jury. We think the defendant’s exception to the refusal to charge this request was well taken. The defendant also requested the judge to charge that the absence of a conductor on a one-horse car is not negligence. The judge declined so to charge, and stated that the jury were to say, from all the facts in the case, whether a conductor was necessary or not. It had been shown on the part of the plaintiff that the car in question was a one-horse car, and had no conductor. We think it was error to refuse to charge this request. There is no statute requiring a conductor upon a one-horse car. In Brooklyn City R. Co. v. Brooklyn (37 Hun 413), the court say, “Whether a railroad shall have large or small cars, with or without a conductor, and how often the car shall run, and when, are subjects left with the companies under their charters, and subject to legislative control.” It could not, therefore, be properly left to a jury.to decide whether a conductor was necessary or not. The question to be left to the jury, on the issue of the defendant’s negligence, was whether, under the actual circumstances of the case, the defendant exercised the care and prudence required of it in what it did, and whether its negligence caused the injury (Greppen v. N. Y. Cent. R. Co., 40 N. Y. 41). These errors lead to a reversal of the judgment and order. A new trial is ordered. Costs to abide the event. [148] J. F. Daly and Bookstaver, JJ., concurred. Judgment and order reversed and new trial ordered, with costs to abide the event.