
    The City of New York, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Negligence — collision between a street cam and a hook and ladder truck—proper charge in an action brought by the cUy to recover damages for injury to the truck — miscalculation by both the driver of the truck and the motorman — right of way given by law to the truck — care required of the motorman — his failure tó use the most efficient remedy in an emergency—duty of the driver of the truck — at what rate of speed the car should he run. <
    
    In an action brought by the city of New York against a street railway company to recover damages for injuries done to a hook and ladder truck owned by the city, which, while on its way to á fire, was struck by one of the defendant’s street cars, the court may properly refuse to charge the jury that if the driver of the truck, upon seeing the car, calculated that he had time to cross the track in safety, the motorman was entitled to that calculation and was not required to use a higher degree of care than the driver; and that if the driver miscalculated, or both he and the motorman miscalculated, their verdict must be for the defendant, as such a charge fails to recognize the fact that the driver of the fire truck and the captain in charge thereof had a right to assume that the motorman, upon discovering, the approach of the truck, would accord to the truck the right of way conferred on it by section 748 of the Greater New York charter (Laws of 1897, chap. 378, as amd. by Laws of 1900, chap. 155).
    In such a case the court may also properly refuse to instruct the j ury that 1 ‘ all tha t was required of the motorman at the time that he apprehended danger was to use ordinary care to bring his car to a stop,” as such instruction might have misled the jury into believing that the defendant would not be responsible if the motorman used ordinary care to stop the car at the time he aprehended danger, even though the danger was caused by his previous negligence.
    The court may also properly refuse to charge that “if at the time the motorman saw the danger he applied the reverse, acting in the belief that that was the best method of stopping the car, the defendant cannot be found guilty of neg-' ligence because the motorman did not apply the brake,” as while the request was technically correct, it might, if granted, have misled the jury into believing that negligence could not be predicated on the conduct of the motorman prior to the time he discovered the danger.
    In such a case the court may properly charge the jury that the driver of the truck was bound to respond to the alarm of fire with the greatest practicable speed, and was only bound to drive with that care which a prudent person would exercise under like circumstances. ,
    In the main charge the court instructed the jury that “ the safety of property and the protection of life may, and often do, depend upon celerity of movement, and require that the greatest practicable speed should be permitted to the . vehicles of the Fire Department in responding to alarms, and the laws and ordinances restricting the speed of vehicles on the streets and avenues of the city do not apply to vehicles of the Fire Department, but do apply to the speed of defendants’ car.”
    At the close of the charge the defendant excepted to this portion thereof, and requested the court to instruct the jury that there was no statute limiting the rate of speed of the defendant’s cars and that negligence could not be predicated on the mere fact that the car was running at a high rate of speed, as the only duty resting on the defendant was, “under all the circumstances, to exert cise reasonable care in the operation of the car.” To this the court responded, “ Taking it altogether I think that is correct. The latter part of your request modifies the balance of that very much. I will charge it as you ask.”
    
      Held, that the court in so doing committed no error.
    Hatch, J., dissented in part.
    Appeal by the defendant, the Metropolitan Street Railway Company, 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 27th day of March, 1902, upon the verdict of a jury for $971, and also from an order entered in said clerk’s office on the 11th day of April, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    
      Bayard H. Ames, for the appellant.
    
      Theodore Connoly, for the respondent.
   Laughlin, J.:

The action is brought to recover damages to a hook and ladder truck, owned by the plaintiff, sustained by a collision with a street car, alleged to have been caused by the negligence of the defendant in the operation of the car. The facts concerning the collision are not materially different from those shown in the case of Geary v. Met. St. Ry. Co., and they Were stated and reviewed by this court on two appeals in that action. (Geary v. Met. St. Ry. Co., 73 App. Div. 441; 84 id. 514.) That was a statutory action to recover for the death of a fireman Who was riding on this truck, which Was responding to an alarm of fire. The only difference in principle between that case and this is that there the deceased fireman was not in charge of the truck or driving, and we held that any negligence on the part of the driver could not be imputed to him and would not prevent a recovery. We 'have again reviewed- the evidence and are of opinion that the question as to whether the driver or captain in charge of the truck was guilty of contributory negligence was one of fact for the consideration of the jury, and that the verdict in that regard in favor of the plaintiff is fairly sustained by the evidence.

Counsel for the defendant requested the court to instruct the jury in effect that if the driver of the truck, upon seeing the car, calculated that he had time to cross the track in safety, the motorman was entitled to that calculation and was not required to use a higher degree of care than the driver; and if the driver miscalculated, or both he and the motorman miscalculated, their verdict must be for the defendant. This request was declined and the defendant excepted. The exception presents no. error. As was stated in our opinion on the last appeal in the Geary Case (supra), section 748 of the Greater New York charter (Laws of 1897, chap. 378), as amended by chapter. 155 of the Laws of 1900, gave the plaintiff’s firemen and apparatus, when on duty proceeding to a fire, the right of way in the public streets over all other • vehicles except those carrying the United States mail. This statute gives the fire department on such occasion the right of way as against the defendant’s cars. The driver of the fire truck and the captain in charge had a right to assume that the defendant’s motorman upon discovering the approach of the truck, in time so to do, Would accord to it this right of way. This difference between the rights of the respective \ vehicles is not recognized by the request and, therefore, it was properly refused.

Counsel for the defendant also requested the court to instruct the jury that “ all that was required of the motorman at the time that he apprehended danger was to use ordinary care to bring his car to a stop.” This request was also refused and defendant excepted. We think it was properly refused. If granted it might have misled the jury into believing that the defendant was not responsible if the motorman used ordinary care to stop the car at the time he apprehended, danger, even though the danger was caused by his previous negligence. Moreover the request was technically incorrect in that the ordinary care to which it relates was at the time the motorman apprehended danger. This would be insufficient. He was required to use ordinary care from that time on until the collision actually occurred.

Counsel for the defendant also excepted to the refusal of the court to instruct the jury that “if at the time that the motorman saw the danger he applied the reverse, acting in the belief that that was the best method of stopping the car, the defendant cannot be found guilty of negligence because the motorman did not apply the brake.” This request was technically correct; but if granted it might have misled the jury. While the defendant would not be liable for an error of judgment on the part of the motorman with reference to the best method of stopping the car when the danger of collision was imminent, yet the defendant might well be liable on the evidence before us for negligence on the part of the motorman prior to the time he discovered or saw the danger. The evidence on which the plaintiff bases its claim of negligence on the part of the defendant is not so much that the motorman did not do the right" thing to prevent the collision when it was, imminent, as in his previous conduct in approaching the crossing at a high rate of speed without having his car under control so as to be able to stop it quickly, and without keeping a proper lookout to discover the approach of the truck or signals thereof.

In the main charge the court instructed the jury that “ the safety of property and the protection of life may, and often do, depend upon celerity of movement, and require that the greatest practicable speed should be permitted to the vehicles of' the Fire Department in responding to alarms, and the laws' and ordinances restricting the speed .of vehicles on the streets and avenues of the city do not apply to vehicles of the Fire Department, but do apply to the speed of defendants’ car.” At the close of the charge counsel for defendant excepted to this charge, and requested the court to instruct the jury that there was no statute limiting the,rate of speed of the defendant’s cars and that negligence could not be predicated on the mere fact that the car was running at a high rate of speed, as the only duty resting on the defendant was,.-“under all the circumstances, to exercise reasonable care in the operation of the car.” To this the court responded, “ Taking it altogether I think that is correct. The- latter part of your request modifies the balance of that very much. I will charge it as you ask.” As thus modified, we think there was no error in the charge.

The court also instructed the jury that the driver of the truck . was bound to respond to the alarm of fire with the greatest practicable speed and was only bound to drive with that care which a prudent person would exercise under like circumstances, and counsel for defendant excepted. This charge was evidently taken from the opinion of the Court of Appeals in Farley v. Mayor (152 N. Y. 222). It is manifest that this is the duty of those in charge of the fire apparatus in responding to an alarm of fire where the safety of life and property necessarily depends upon the prompt arrival of the firemen and apparatus for extinguishing fires; and it was contemplated by the Legislature when it gave them the right of way over other vehicles in the public streets on such occasions. The other exceptions to which attention has been drawn have been examined but they require no special consideration here.

It follows that the judgment and order should be affirmed, with costs.

Van Brunt, P. J., Patterson and Ingraham, J J., concurred; Hatch, J., dissented.

Hatch, J. (dissenting) :

I am of opinion that the defendant was entitled to a charge to the jury of the matter embraced in its second and third requests. They contained correct expositions of the law, were applicable to the facts in the case and had not been embraced within the general charge delivered by the court. As they were correct statements of the law, as applicable to the facts appearing in the case, I am not able to see how they can be regarded as misleading.

For this reason I am constrained to dissent from the doctrine announced in the prevailing opinion upon such subject.

Judgment and order affirmed, with costs.  