Quinn v. New York City Railway Co.

94 N.Y.S. 560

Opinion

SCOTT, P. J.

It was clearly error to have excluded the city ordinance. Kroder v. Interurban St. Ry. Co. (Sup.) 91 N. Y. Supp. 341. Of course, its admission would not have been determinative of the question of the motorman’s care or negligence, because mere possession of the right of way does not give the driver of a vehicle license to omit all care in the avoidance of collisions. But the defendant was entitled to lay the ordinance before the jury as bearing upon the degree of caution imposed upon the motorman under the circumstances. So, too, it was erroneous to charge the jury as a matter of law that because the day was wet the motorman was obliged to use “more than ordinary caution.” His duty was to use ordinary care under the circumstances as they existed, one of which was the slippery condition of the street. In certain other regards the charge imposed upon the defendant a greater burden than is justified by well-established rules of law. It was highly improper for the plaintiff’s counsel to persist in repeatedly asking a question which had been excluded, and for this persistence the court might well have granted the motion to withdraw a juror.

Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.