
    ANN HEALEY, Appellant, v. THE DRY DOCK, EAST BROADWAY & BATTERY RAILROAD COMPANY, Respondent.
    I. Negligence.
    1. CONTRIBUTORY, WHAT IS NOT.
    
      (a) A plaintiff’s own negligence, or want of ordinary care and caution is not contributory, unless biti- ior such negligence or want of ordinary care and caution, the collision resulting in injury to the plaintiff would not have happened.
    1. Where a defendant, after becoming aware of plaintiff’s danger by observing the condition and peril of plaintiff, could, by the exercise of reasonable care and prudence, Turne avoided the collision, the negligence, &c., of the plaintiff is not contributory: in such case, it cannot be said that the collision would not have happened but for the negligence, &c., of plaintiff.
    1. The fact that one has placed himself in a place of danger, can never be an excuse for another carelessly or recklessly injuring him.
    H. Application.
    1. The plaintiff was crossing a street-car track, carrying on one of her shoulders two large bundles, of such size and in such position as to obstruct both her hearing and vision on the side of an approaching car, the near horse of which struck her down, and one of her feet was injured by one of the car wheels. The evidence was conflicting on the question, as to whether the driver, after his being apprised of plaintiff’s imperiled and crippled condition, could, with ordinary care, precaution and diligence, have stopped the car in time to prevent the injury.
    Plaintiff’s counsel requested the court to charge the jury substantially in accordance with above principles. The court refused so to charge, and verdict passed for defendant.
    Held,
    
      error; the evidence warranted the requests.
    Before Sedgwick, Ck. J., Speir and Russell, JJ.
    
      Decided December 6, 1881.
    Appeal is only from an order denying a motion on the judge’s minutes, under section 999 of the Code, for a new trial.
    The action charged the defendant with negligence through its servants, for damages for personal injuries to plaintiff, and resulted in a verdict for the defendant.
    It appears that the plaintiff, a woman fifty-four , years of age, while in the act of crossing Canal street, a little west of Mott street, was knocked down by the near horse of the team attached to one of defendant’s street-cars, which was then going westerly on the northerly railroad track in Canal street, and one of her feet injured by one of the car wheels. The plaintiff, prior to the accident, was employed in lucking hair which is used for mattrasses, cushions, &c., and on this occasion had obtained, from a store on the south side of Canal street, two rolls of hair about three feet long and a foot and a half thick, weighing about twenty-eight to thirty pounds each. These rolls were placed on her right shoulder, one on top of the other, and their dimensions and position were such as to obstruct both her vision and hearing on the side which was the direction the car was coming. Other facts will appear in the opinion.
    
      O. P. Buel, attorney, and of counsel, for appellant, urged :
    requests state a correct rule of law, or, more specifically, a correct rule of evidence, relevant to the testimony in the case ; and the court erred in refusing to charge the rule, as requested, for the guidance of the jury, in their consideration of the testimony.
    1. It is not enough, to defeat plaintiffs right of recovery, that her negligence placed her in a position of peril, or remotely contributed to the injury. It must appear that her negligence proximately contributed to the injury. It is not enough that she was negligent in not looking out for approaching vehicles, before attempting to cross the street (as stated by the' learned chief justice in his charge). If defendant’s driver was notified of her negligence and her peril in time, by reasonable care on his part, to avert a collision and the consequent injury, and failed to exercise such reasonable care, then the question of plaintiffs prior negligence is eliminated from the case, and the defendant becomes liable by reason of its driver’s negligence. “It may be said (in the language of Judge Cooley), that in such a case the negligence of the plaintiff only put her in a position of danger, and was therefore only the remote cause of the injury, while the subsequent intervening negligence of the defendant was the proximate cause (Cooley on Torts, 674; Burham v. St. Louis & I. M. R. Co., 56 Mo. 338 ; Austin v. New Jersey Steamboat Co., 43 N. Y. 75, 82 ; Green v. Erie R. Co., 11 Hun, 333; Card v. Harlem It. Co., 50 Barb. 39 ; Steele v. Burkhardt, 104 Mass. 59 ; Wharton on Neg., § 388; Shearm. & Redf. on Neg. §§ 25, 33, 36, and cases cited and notes; Thirteenth & Fifteenth Streets Pass. R. Co. v. Boudron, 10 Reporter, 156).
    II. The expression, “ contributory negligence,” is so general, that in many, perhaps in most cases, it requires explanation according to the circumstances of the case, in order to guard a jury against misconceiving its import (Shearm. & Redf. on Neg. § 25, note 4 ; Tuff Warman, 5 C. B. [N. S] 573, 584; Compton, J., criticises the expression as “ much too loose”).
    III. The learned chief justice, on the trial, distinctly charged the jury, that if the plaintiff omitted to look for the approaching car “ before attempting to cross the street,” “ she was guilty of contributory negligence, which defeats her right of action. This statement, unqualified or unexplained, could scarcely fail to mislead the jury. But even if it were doubtful simply, whether the jury might not have been misled, it was error for the court to refuse to charge the qualification of the rule, expressed in the requests to charge (Weber v. Kingsland, 8 Bosw. 447, Woodruff, J.; Sayre v. Townsend, 15 Wend. 647; Chapman v. Erie R. Co., 55 N. Y. 587, Church, Ch. J.; Vedder v. Fellows, 20 Id. 129, 130; Bisling v. Third National Bank, 10 Reporter, 410). In Culhane v. New York Central & H. R. R. Co., Judge Allen says: “ The remark of the judge was very liable, unexplained, to mislead the jury. ... It was, therefore, error for the judge to refuse to charge as requested. The refusal deepened the impression made upon the minds of the jury by the evidence, and the general instructions given them” (60 N. Y. 136).
    IY. The requests were relevant to the testimony.
    
      Robinson & Scribner, attorneys, and John M. Scribner, of counsel, for respondent, urged:
    I. The plaintiff’s exceptions were not well taken. To sustain these exceptions would annihilate the doctrine which has always maintained in this class of cases, that a plaintiff who seeks to recover damages for personal injuries alleged to have been caused by defendant’s negligence, must be free from fault himself (Ernst v. Hudson R. R. Co., 24 How. Pr. 97, 103 ; Deyo v. New York Central R. R., 34 N. Y. 9, 14; Button v. Hudson R. R., 18 Id. 248-257; Wilds v. Hudson R. R. Co., 24 Id. 432 ; Grippen v. N. Y. Cen. R. R., 40 Id. 51 ; Hale v. Smith, 78 Id. 480 ; Warner v. New York Cen. R. R. Co., 44 Id. 471; Mangam v. Brooklyn R. R. Co., 36 Barb. 237, Emott, J.; Owen v. Hudson R. R. Co., 7 Bosw. 329; S. C., affirmed, 35 N. Y. 516; McGrath v. New York Cen. R. R. Co., 59 Id. 470 ; Reynolds v. New York Cen. R. R., 58 Id. 250; Cordell v. New York Cen. R. R., 75 Id. 332 ; Stackus v. New York Cen. R. R., 7 Hun, 559).
    II. Plaintiff’s exceptions were not well taken, because there was no evidence on which the jury could have justly found that the car driver was apprised of the plaintiff’s peril “at such time that the injury might have been avoided by the exercise of reasonable care and prudence on his part,” or that he “ could have stopped the car before the front wheels struck the plaintiff’s foot.” Assuming, for the sake of argument, but against the authorities, that plaintiff’s requests to charge contained correct propositions of law, it was not error for the judge to refuse to charge the same, because the evidence would not justify the jury in finding that the car driver could have done any more than he did to avert or lessen the injury suffered by the plaintiff (Rushmore v. Hall, 12 Abb. Pr. 421; Pratt v. Ogden, 34 AT. Y. 22 ; Rouse v. Lewis, 4 Abb. Ct. App. Dec. 121; Hope v. Lawrence, 50 Barb. 262 ; Schwerin v. McKie, 5 Robt. 422; Kiernan v. Roche-lean, 6 Bosw. 148, 153). The jury having been properly instructed in respect to everything necessary to a proper disposition of the case, the judge was under no obligation to make any further charge, even if. the plaintiff’s requests, as abstract propositions, had been correct (Moody v. Osgood, 54 N. Y. 494 ; Kissenger v. New York & Harlem R. R., 56 Id. 542).
    
    III. Upon all the. evidence in this case, and after the clear and careful charge delivered by the judge, the jury must have found that there was no negligence on the part of the car driver, and that the accident resulted from the plaintiff’s own negligence. The jury were instructed, that, to entitle the plaintiff to recover, they must be satisfied “ there was no negligence on her part,’’ and if “ the injuries received by the plaintiff resulted wholly or partly from her failure to observe an approaching car, which she could have seen by looking, then she cannot recover, no matter how great had been the negligence of the car driver.” The plaintiff took no exception to this nor tq, any other part of the judge’s charge. It is respectfully submitted that, if the charge was correct, the propositions requested to be charged by the plaintiff were wholly incorrect. And to establish the accuracy of the judge’s charge in this respect, and likewise to. maintain our own position, that it would have been error to have charged the propositions requested by the plaintiff, we ask the attention of the court to some of the more recent authorities relating to the duty of pedestrians and others to look both ways before attempting to cross a city street or railroad track. “It was the legal duty of the plaintiff, in crossing the avenue, to exercise reasonable care to protect herself from injury by a collision with vehicles that were traveling thereon” (Barker v. Savage, 45 N. Y. 192 ; Gorton v. Erie Railway Co., 45 Id. 664 ; Ernst v. Hudson R. R. Co., 35 Id. 9 ; S. C., 39 Id. 61; Beisiegel v. New York Central R. R. Co., 34 Id. 625; Havens v. Erie Railway Co., 41 Id. 296 ; Davis v. New York Central R. R. Co., 47 Id. 400 ; Mitchell v. New York Central R. R. Co., 
      2 Hun, 535; Reynolds v. New York Central R. R. Co., 58 N. Y 248 ; Salter v. Utica, &c. R. R. Co., 75 Id. 276 ; Belton v. Baxter, 54 Id. 247 ; Belton v. Baxter, 58 Id. 411; Stevens v. Oswego, &c., R. R. Co., 18 Id. 423; Ernst v. Hudson River R. R. Co., 39 Id. 68 ; Stakus v. New York Central R. R. Co., 7 Hun, 561; Wilcox v. Rome, &c. R. R. Co., 39 N. Y. 358 ; Grippen v. New York Central R. R. Co., 40 Id. 34; Nicholson v. Erie Railway, 41 Id. 541; Baxter v. Troy & B. R. R. Co., 41 Id. 503; Harty v. Central R. R. N. J., 42 Id. 473; Sutherland v. New York Cen. R. R. Co., 9 J. & S. 17, 29 ; McGrath v. New York Cen. R. R. Co., 59 N. Y. 470 ; Mitchell v. New York Cen. R. R. Co., 2 Hun, 538; Davis v. New York Central R. R. Co., 47 N. Y. 401; Weber v. New York Central R. R. Co., 58.Id. 455 ; Salter v. Utica & Black R. R. Co., 75 Id. 276; Cordell v. New York Central R. R. Co., 75 Id, 332).
    IV. The plaintiff was not a passenger, a.nd hence the stringent rales of law which govern as between carrier and passenger have no relation to this case. The defendant owed no duty to the plaintiff, except the exercise of ordinary care, and in that respect “no more care can be required of street railway companies in the management of their cars and horses in the-street than is required of the driver or owner of any other vehicle” (Unger v. Forty-second Street R. R. Co., 51 N. Y. 502).
   By the Court.—Speir, J.

The only question which the plaintiff’s appeal brings before us for review, are the exceptions taken to the refusal of the learned judge to charge as requested by the plaintiff.

The requests are as follows:

1. “Even if the jury believed plaintiff before crossing neglected to look for an approaching car, or was in any other way guilty of negligence so as to place herself in peril of- injury, yet if defendant’s driver was apprised of the peril at such time that the injury might have been avoided by the exercise of reasonable care and prudence on his part, the plaintiff is entitled to a verdict.”

2. “If at any time after it became apparent to defendant’s driver that a collision was inevitable, or if, after the horses actually struck the plaintiff, the driver could have stopped the car before the front wheel struck the plaintiff’s foot, having failed to do so, the plaintiff is entitled to recover.”

The law in these cases of negligence is now well settled in this country and in England.

The first proposition is general, and to the effect, that the plaintiff in an action for damages caused by the negligence of another cannot recover, if the jury find that he himself has been guilty of negligence or want of ordinary care which contributed to cause the injury.

There is a qualification of this rule (which is as well settled as is the general rule), that the plaintiff may recover, notwithstanding his own negligence exposed him to the risk of injury, if the defendant, after becoming aware of the plaintiff’s danger, failed to use ordinary care to avoid injuring him.

The principle is stated in Wharton on Negligence, section 303: “In order to defeat the recovery of damages arising from defendant’s negligence, the plaintiff’s negligence must have been the proximate and not the remote cause of the injury ; in other words, must be its judicial cause and not merely one of its conditions.” As applied to this case, if the plaintiff was negligent by not looking with sufficient care, or, notwithstanding she saw the - car approaching, she negligently or carelessly started across the street, expecting to clear the northerly track before the car reached the westerly side of Mott street, did her negligence contributed to the injury, if the defendant’s driver, after he became aware of her danger by observing her condition and peril, could have averted the collision and the consequent injury \ It cannot be said that the remote negligence of the plaintiff would protect the defendant, whose proximate negligence was the judicial cause of her injury. The fact'that one has placed himself in a place of danger, can never be an excuse for another carelessly or recklessly injuring him. It may be said in such a case, the negligence of the plaintiff only put her in a position of danger, and was therefore only the remote cause of the injury, while the subsequently intervening negligence of the defendant was the proximate cause. The following cases and authorities may be relied upon in support of the doctrine : Davis v. Mann (10 Mees. & W. 546); Button v. Hudson River R. R. Co. (18 N. Y. 248); Austin v. New Jersey Steamboat Co. (43 N. Y. 75); Radley v. London & N. W. R. R. Co. (1 E. L. R. App. Cas. 754); Shearm. & Redf. on Neg. and cases cited in section 36 ; Steele v. Burkhardt (104 Mass. 59); Card v. Harlem R. Co. (50 Barb. 39) ; Thirteenth and Fifteenth Streets Passenger R. R. Co. v. Bondon (Sup. Court Term, Feb’ y, 1880, 10 Reporter, 156, Aug. 4, 1880.)

It appears to ns that there was a question for the jury in this case, as to whether the damage was occasioned entirely by the negligence or improper conduct of the defendant; or whether the plaintiff herself so far contributed to the misfortune by her own neglh gence or want of ordinary care and caution, that but for such negligence or want of ordinary care and caution, the misfortune would not have happened. In the first case the plaintiff would be entitled to recover, in the latter she could not, as, but for her own fault, the misfortune would not have occurred.

The contest on the trial was, whether the car could have been stopped in time by the defendant’s servant, with ordinary care and precaution, to prevent the accident, when the driver discovered the plaintiff’s imperiled and crippled condition. The learned judge in his charge to the jury speaks of the testimony bearing on the point as conflicting in its character. This is apparent from all the facts and circumstances as related by the witnesses, which are brought to bear on the question in controversy—as to speed the car was going—the distance the car was from the plaintiff when ■the driver first, saw the plaintiff—the statements of both the driver and conductor conflicting with those of other witnesses in the case, and especially one witness who was on the platform at the left of the driver, who testifies “ that the driver first cried out and put the brakes down, and nearly arrested the motion of the car, and then loosened them and started on again when the horses’ heads were within eight feet of the plaintiff” ; other witnesses testifying “that this was not so, that he put the brakes down and stopped the car just as it reached the foot of the plaintiff, who was thrown by the shoulder of the near horse, and that the horses were partly wheeled round from the car.”

It is admitted that the position and dimensions of the rolls of hair which the plaintiff carried on her right shoulder, one on top of the other, were such as to obstruct both her vision and hearing on the side of the approaching car. And no witness has testified that she did or could have ascertained whether a car was aproaching from that side. Whether she did or not depends upon inferences to be drawn from other facts, which are not conclusive. So as it regards other conflicting facts as to the position óf the car and the conduct of the driver. In such a case it is the province of the jury and not of the court to find the facts and draw the inferences.

Enough appears from the case to show that the requests to charge were relevant to the testimony.

The learned judge charged, “If you find from the evidence that the injuries received by the plaintiff resulted wholly or partly from her failure to observe an approaching car which she could have seen by looking, then she cannot recover, no matter how great had been the negligence of the car driver.” Again, that if the plaintiff omitted to look for the approaching car, “ before attempting to cross the street, she was guilty of contributory negligence, which defeats her right of action.” The charge comes within the general rule in regard to negligence as before defined, but it wholly omits to recognize the rule which is strictly applicable to the case in hand. This could hardly fail' to mislead the jury. The point in controversy on the trial was not in fact submitted to them, but withdrawn from their consideration by the statement, ‘ that her failure to observe the approaching car, which she could have seen by looking, she could not recover, no matter how great had been the negligence of the car driver.” It was therefore error to refuse to charge the qualification of the rule expressed in the requests to charge.

The order appealed from should be reversed and a new trial granted, with costs to abide the event.

Sedgwick. Ch. J., and Russell, J., concurred.  