Moody v. Osgood

60 Barb. 644, 1871 N.Y. App. Div. LEXIS 87

• Court: New York Supreme Court
• Decided: November 7, 1871
• Status: Published

Opinion

By the Court, Ingkraham, P. J.

The evidence on the question of negligence, both on the part of the plaintiff and of the defendant, was properly left to the jury, and the jury have found against the defendant.

As to the alleged negligence on the part of the plaintiff, •which, it is contended, contributed to the accident, the evidence is of a contradictory character. The plaintiff had reached the end of her route in the Eighth avenue car, and must either leave it, or be carried back. She says she looked for vehicles on the road, and saw none as near as 124th street. Whether, under such circumstances, she could have done otherwise than she did do, was a question which could not, properly, have been decided by the court. .

As to the defendant’s negligence, there can be no doubt that driving in a public street at the rate of a mile in three minutes and ten seconds, when the law limits driving to eleven minutes to a mile, is amply sufficient to charge the defendant with the consequences that follow from such driving.

The instructions to the jury, on these points, were sufficient, in the absence of any request to charge more particularly. In fact, all the requests made in reference to these questions, except those which I will notice hereafter, were charged in the defendant’s favor, and in a manner of which he cannot complain.

Hypothetical questions were suggested, and a request made to charge upon them as to the balance of the evidence, which I think the judge was not required to submit to the jury. The jury had been charged that the accident must have been occasioned solely by the wrongful act of the defendant, and without any act of negligence on the part of the plaintiff. This covered all that was proper to be submitted to the jury on that point. The questions whether the defendant could -have avoided hitting the plaintiff, and whether, if the plaintiff had gone on, instead of returning .to the car, she would have been injured, were mere matters of opinion, and were properly excluded.

It is hardly to be supposed that an elderly woman, leaving a car under such circumstances, can exercise that coolness and judgment which a man used to driving horses - can do; and even if she could have escaped by the other course, it would not have altered the result.

[First Department, General Term, at New York, November 7, 1871.

We see no error on the trial, and think the judgment should be affirmed.

Ingraham, P. J., and Cardozo, Justice.]