
    Timothy Heffernan, Respondent, v. Alfred Barber’s Son, Appellant.
    
      .Negligence—collision between two coal carts — a driver who persists in going on the left side of the street— charge to thejwry.
    
    The driver of a coal cart, one Begley, contrary to the rule of the road, proceeded on the left side of a city street, in order to turn into a coal yard on that side, and requested one Heffernan, the driver of another coal cart approaching from the opposite direction, to swing his cart over a little to the left so as to enable Begley to do so; but Heffernan, desiring that Begley should keep to his own (Begley’s right) side of the road, continued his course until he perceived that Begley persisted in keeping to the left and thus precipitating a collision, when he turned his own cart to the left, Begley's cart keeping on in its original direction, and forcing its way between the curb and Heffernan’s cart, until the hubs of the two carts collided.
    In an action brought by Heffernan against Begley’s employer to recover damages for injuries thus sustained, it was
    
      Held, that, under the view of these facts most favorable to Begley, a question of fact was presented for the jury, Begley being apparently in the wrong throughout;
    That it was not error for the court to refuse to charge, at the defendant’s request, that “if the jury believe that the plaintiff calculated to pass the defendant’s' cart, when he could in safety have avoided the collision, such calculation on his part defeats his’recovery in this action,” as such request omitted all reference to reasonable care and prudence, and misapplied the rule" as to miscalculation by.one in immediate jeopardy;
    That a further request to charge that “if the jury believe that the plaintiff had..a plain, unobstructed view of the advance of the defendant’s cart for a long-distance, and saw the direction which defendant’s cart was taking and plaintiff' could have avoided the collision, it was not negligence on the part of the- -, defendant’s driver to keep upon the course (on) which he-was going prior to-the collision,” was also properly refused.
    Appeal by the defendant, Alfred Barber’s Son (a domestic corporation), from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on -the 7th day of April, 1898, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 7th day of April, 1898, denying the defendant’s motion for a new'" trial made upon the minutes.
    
      Arthur C. Palmer, for the appellant.
    
      M. P. O’Connor, for the respondent.
   Barrett, J.:

The action was for damages which the plaintiff sustained as •'the-result of á collision between two coal carts. The plaintiff was driving the one; one Begley, a driver of the defendant’s, the other.. The collision occurred in Water street, between Oliver street and .James slip. The plaintiff was' going in a southwesterly direction, and was. on the northwesterly side of the street. Begley turned into-Water street from South street, up James slip. This brought him into Water street heading in a northwesterly direction, and'- he proceeded on the left side of that street contrary to the rule of the road. The drivers called out to each other to change their course. The defendant’s coal yard was in Water street, on its southerly side, and Begley testified that he requested the plaintiff to swing his cart over a little to the left so as to give him, Begley, a, .chance to turn in to this coal yard. The plaintiff, it is claimed, knew where the defendant’s coal yard was, and that Begley was going there. He, however, desired that Begley should keep to his own side of the road, and it was not until he perceived that Begley persisted in keeping - to the left, and thus precipitating a collision, that he turned in the other direction, that is, to his left. Begley throughout kept right on in his original direction, thus forcing his cart in between the plaintiff’s cart and the curb, where, in the end, the hubs of the two ' carts Collided. The defendant contends that the collision resulted from the plaintiff’s refusal to turn out sooner than he did, and also from the fact that the plaintiff was sitting on the left of the driver’s seat on his own cart, and that this prevented his seeing the hubs of the two wagons, and caused him —when he finally turned out-—-to miscalculate the distance of safety.

The least that can be said upon all these questions of fact is that they were for the jury. Begley was apparently in the wrong throughout. No matter where his master’s coal yard was, he had no right to violate the rule of the poad and to force the plaintiff, at. the risk of a collision, to turn out for him. The plaintiff had a perfect right to pursue his lawful course, and he acted with great moderation in submitting, as he did, to Begley’s unwarranted demands. It was natural that he should submit reluctantly, and should delay to turn out until quite certain that Begley would not himself deviate from his course.

The jury believed the plaintiff’s story, as they were authorized to do. Whether Begley stopped, as he said he did; whether the plaintiff should have turned out sooner than he did ; whether his position on the driver’s seat caused him to miscalculate the distance between the hubs of the two carts; whether he did the best he could under the circumstances ; all these were, to say the least, questions for the jury. And we see no reason to disturb their verdict, embracing, as it necessarily did, an answer 'favorable -to the plaintiff upon these and all other questions of fact.

Two exceptions were taken to the learned trial judge’s rulings. They were to the refusal to charge the following propositions:

(1) “ If the jury believe that the plaintiff calculated to pass the defendant’s-cart, when he could unsafely have avoided the collision,, such calculation on his, part defeats his recovery in this- action.” •
(2) “ If the jury believe that the plaintiff had a plain, unobstructed view of the advance of the defendant’s cart for a long distance, and saw the. direction which defendant’s cart was taking, and plaintiff could have avoided the collision, it was not negligence on the part of the defendant’s driver to keep upon the course.which he was .going prior to the collision.”

The first of these propositions omitted all reference to reasonable care and prudence. In substance it made the plaintiff a guarantor of the success of the calculation ; in other words, that he must avoid the collision if it were possible to do so, not if it could be avoided with the exercise of reasonable care. The proposition also misapplied the, rule as to . miscalculation,- when one who is in no immediate peril places himself unnecessarily in the perilous situation and takes the chances of getting through safely. If there was here a-' miscalculation, it was by one who was put in immediate jeopardy by the defendant’s negligence,1 and who simply calculated how best to escape.

, The second proposition is quite obscure. The premise bears upon the plaintiff’s negligence; the conclusion upon the defendant’s. It was certainly neither negligence nor care upon Begley’s part, as matter of law, to keep on as he did merely because the plaintiff saw what he was doing and where he was tending, Begley might, as matter of fact, have been influenced by what he himself saw, or even by what he noticed that the plaintiff saw. But that was not the proposition. It Was, that if the plaintiff, from what he saw, could have avoided the collision, it was not negligence on Begley’s part to keep on his course.

Both propositions were untenable and were properly refused;

■ No other question is presented upon this appeal except as to the amount of damages. There is no just foundation for the claim that they were excessive. The verdict' for $3,500 was certainly substantial. It was perhaps even large. But it was not excessive under the governing rule upon that head.

The judgment and order appealed from should be affirmed, with costs.

Van Brunt, P. J., Rumsey, Patterson and O’Brien, JJ., concurred.

Judgment ana order affirmed, with costs.  