Falotio v. Broadway & Seventh Avenue Railroad

9 Daly 243

• Court: New York Court of Common Pleas
• Decided: April 5, 1880
• Status: Published

Opinion

Van Brunt, J.

[After stating the facts as above.]—The learned judge before whom this case was tried, had, in no part of his charge, except in the language above quoted, in any respect defined the degree of care which the driver was bound to exercise in the management of his cai’ while going through the street.

The charge, as given, seems to imply that the car-driver was bound to exercise the greatest care in the management of his vehicle. It is stated that he must be vigilant in observing the track; and be in a position to speedily apply his brake. Such language, following a refusal to charge in the language of the request made, must necessarily have conveyed the impression to the jury, that the court intended that they should understand that the driver was to exercise more care than is required of the driver of other vehicles, in the street.

This was giving the jury an entirely erroneous standard, by which to determine the question of the negligence of the dedefendant (Unger v. Forty-second street, &c. R. R. Co., 51 N Y. 498).

The defendant had the right to have the request substantially charged, in order that a proper standard of care might be before the jury, and a denial to charge such request, the question of negligence being involved, was error.

The judgment must be reversed and a new trial ordered, costs to abide event.

J. F. Daly and Van Hoesen, JJ., concurred.

Judgment reversed and new trial ordered, costs to abide event.