Purcell v. Union Railway Co.

58 Misc. 240, 108 N.Y.S. 1068

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 15, 1908
• Status: Published

Opinions

MacLean, J.

Upon the evidence alone, one passenger supporting the testimony of the plaintiff and the conductor, and another passenger, a woman, that of the motorman, the jury might have resolved the questions of fact either way and found a verdict not here to he disturbed, notwithstanding some inconsistencies on the plaintiff’s part respecting points of the compass and the direction in which he had been and was driving before and at the time of the collision.

One important exception, however, was taken tó the charge of the learned trial justice, who said: “Row what is the law applicable to this case ? The law says that when one attempts to cross the tracks of a street car and has approached the track at such a distance from the approaching car that he has reasonable ground to suppose that he will be able to cross the track, it is the duty of the street car driver to give him a reasonable opportunity to cross, and if for that purpose it is necessary for him to stop his car for a time, it is his duty to do so.”

That was an objectionable assertion, inasmuch as it largely left the standard of the motorman’s care (the ordinary care of an ordinarily prudent man) to the apprehension of the plaintiff, an incorrect standard. Fact it is that almost these very words can be found in an opinion in the court of next 'resort, based according to the accompanying citation upon an earlier opinion, in another case, containing an outburst of aphorisms or colloquial commonplaces which bearing the hall-mark of an appellate court have since been fervidly repeated to juries in street crossing cases. These words do not express the law — the law applicable to the case at bar. Furthermore, as if to impress upon the jury the signal importance of the plaintiff’s reasoning, the court added: “ But I say to you gentlemen, right here, that the inverse of that rule or proposition is equally true. You have got to determine, assuming the truthfulness of the statements given to you by the plaintiff and his witnesses when he approached that track in his effort to cross it, whether that car was such a distance away from him as led him to believe that he could get over the track in safety. If he did not, he could not recover, because he accepted himself the risk he then took.” This addition was not curative. This accentuated the instruction foregoing and left out the mutuality of their respective obligations. Even if the plaintiff had reasonable ground (ground reasonably) to suppose, he might not heedlessly proceed under circumstances obviously perilous. Such accentuation of the motorman’s obligation to exercise care to avoid a collision by making it his duty to stop when the plaintiff by his reasonable ground of supposition perilously essayed to pass allowed an inference, almost naturally, that the plaintiff might rely upon the motorman stopping. That is not the law, nor is it the unwritten rule of the road, both of which require active care on the part of the individual in charge of the vehicle, horsed or horseless. The plaintiff had no more right to indulge the assumption that the motorman would stop than the motorman that the driver would keep out of the way of the car. Thompson v. Metropolitan St. R. Co., 89 App. Div. 11, 13. For this erroneous laying down of the law, the judgment must be reversed.

It may be added, while there is no tariff for injuries, that, according to the compensation roughly deducible from verdicts, the present is at least more than double the damage ordinarily awarded, particularly as from the plaintiff’s active exercise of his calling he has presumably recovered his good form and keeps it by regular, unless something too sedentary, exposure in the open air.

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