
    August Pallez Resp’t, v. The Brooklyn City Railroad Company, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 11, 1889.)
    
    1. Negligence—Street railroads—Instructions to jury.
    Where in an action for personal injuries, the plaintiff, while attempting to board one of the defendant’s cars going up town was thrown down; upon the opposite track and injured by a car coming down town, -the: plaintiff's evidence tended to show that at the time he was thrown on the track the car which'injured him was some eighty feet from him. The defendant’s witnesses combated this fact and gave evidence to show that the plaintiff was thrown immediately in front of the horses at the time of the injury. The court charged that “if the driver took all the measures that an ordinarily prudent and careful man would have taken to prevent the collision,” he was free from fault. Eeld, that with this rule given, it was proper to refuse a rule of comparison with drivers “ of any other vehicle traveling along the street.”
    
      2. Same—Refusal to charge bequest—When pbopeb.
    Where the court had already charged “ if you find it was negligence on. his part to attempt to board the car under these circumstances, then there is an end of the case,” there was no error in refusing to charge a request which went no further except to bring in specifically the probable dangers from an approaching car on the other track.
    Appeal from a judgment of the Kings county circuit court, entered upon the verdict of a jury, in favor of the plaintiff and from an order denying a new trial.
    
      Morris & Pearsall, for app’lt; Charles J. Patterson, for resp’t.
   Barnard, P. J.

—This case, upon this appeal, depends ■upon the finding of fact by the jury that the defendant’s •driver was negligent in the management of his car. The evidence shows that the plaintiff attempted to board an up car moving quite fast. That the motion of the car swung him around and threw him down upon the defendant’s track before cars going in an opposite direction. It is at this point the variance arises between the witnesses. The plaintiff’s evidence tends to show that at the time he was thrown on the track in front of a down car, the car which injured him on that track was some eighty feet from him. There was no dispute, but that if such was the fact it was great negligence for the defendant’s driver of that car to keep on until he inflicted the injury on the plaintiff lying helpless on the track. The defendant’s witnesses combat this fact and give evidence tending to show that the plaintiff was thrown immediately in front of the horses at the time of the injury, so that no care or skill could stop the car in time to prevent the injury.

The jury have found upon this conflict that the defendant’s driver could have stopped the car before he struck the plaintiff, and thus made out an actionable neglect of duty to the plaintiff. The court charged that “if the driver took all the measures that an ordinarily prudent and careful man would have taken to prevent this collision,” he was free from fault. With this rule thus given it was proper to refuse a rule of comparison with drivers “of any other vehicle traveling along the street.” The case concerned this driver and car and his management under the circumstances under which he was placed. There was likewise no error in refusing to charge the 11th request. The court had already charged, “if you find it was negligence on his part to attempt to board the car under these circumstances, then there is an end of the case.”

The request went no further, except to bring in specifically the probable dangers from an approaching car on the •other tracks. The court had already charged the jury, that if the plaintiff was thrown down so close to the approaching car that the driver could not stop, the plaintiff had no action for his injuries. If the plaintiff was negligent, and the driver of the coming car ought to have seen him on the track and saved him, the action is made out.

The judgment should be affirmed, with costs.

All concur.  