Prince v. Third Avenue Railroad

BISCHOFF, J. Evidence, which the jury could properly accept, justified the finding that the plaintiff’s wagon changed its course, in an attempt to cross the track, when the car was three-quarters of a block away, and the accident could well be attributed to the negligence of defendant’s servant in operating the car with a total disregard of the situation before him. The recovery is not opposed to the weight of the evidence, and sufficient ground for reversal is not afforded, in my view, by an instruction to the jury to which the appellant has directed our attention. The main charge appropriately defined the duty of care owing from the persons in control of the wagon and car, but later, in answer to a request by defendant for an instruction that the plaintiff’s driver was bound “to wait at the approach of a car, and not delay its progress,” the court said: “I charge that the plaintiff had the right to cross the track when he saw a reasonable opportunity to do so, even though it required the motorman of the defendant’s car to slacken its speed. The rights of drivers of vehicles, and those of gripmen of electric cars are reciprocal, so that the gripman of a car is bound to see to his charge as diligently as it is the duty of the driver of a hack or of any other vehicle to see to his charge.” The attention of the court and jury, when this instruction was given, was directed to the proposition, asserted by defendant, that the plaintiff’s lawful right to cross the tracks depended upon his not delaying a car; and the words “reasonable opportunity,” as used by the court in this connection, were in no sense inconsistent with the main charge as to the use of reasonable care. Nor did the charge substitute the mental process of the driver for the judgment of the jury as to whether the attempt to cross was reasonable. The words used [543] did not make the driver’s judgment the test, but the reasonableness of the opportunity which “he saw.” What he did see, and whether it was an opportunity to be seized in the exercise of due care, was obviously left to the jury; and, taking this charge as a whole, I cannot hold that there was any inconsistency, nor that the jury, in the usual understanding of words, could properly have been misled to the appellant’s prejudice. The judgment should be affirmed, with costs. FREEDMAN, P. J., concurs.