
    Charles B. Lawson, as Administrator, etc., of Charles Ruppert, Deceased, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Wegligence—relative rights of a street car and a wagon in a public street—requests to the court to charge.
    
    While a street car has a right of way superior to that of other vehicles over the space included between its tracks, except at a crossing; it has not an exclusive right therein.
    Where the driver of a wagon, desiring to cross a street car track, approaches the •track at such a distance'from an approaching car that he has reasonable ground to suppose that he may cross in safety, it is the duty of the car driver to afford him a reasonable opportunity to do so, although the car driver may be obliged to check the speed of his car or to stop it, and the driver of the wagon may properly assume that the car driver will perform his duty.
    ■In an action brought to recover damages resulting from the death of the plaintiff’s intestate, it appeared that the latter, who was driving a heavily-laden truck northerly along the east side of an avenue upon which the defendant operated a street surface railroad, desired to turn westerly into a side street; that for this purpose he started from a point, about twenty-seven feet from the intersection of the side street, to drive diagonally across the avenue; that when the truck reached the south-bound track of the railroad it was struck by one of the defendant’s south-bound horse cars, the. intestate receiving injuries which resulted in*his death. There was- evidence tending to show that when the intestate, Whose horses were walking,, reached the south-bound track the car.in question was about fifty feet away, and that the driver of the car and the intestate were in plain view, of each other and that there would have been no difficulty in stopping the car or in checking its progress so as to avoid the collision.
    
      Held, that upon the evidence the question whether the driver of the car was negligent, and whether the intestate was free from contributory negligence, was for the jury, and that a verdict in favor of the plaintiff should not be disturbed.
    A judge presiding at a jury trial is not bound to repeat, in the language suggested to him by counsel, a proposition which he has already charged in a different form.
    A counsel making a réquest to charge is bound, at bis peril, to be correct in,his statements; if he states a proposition of law too broadly, or assumes as a fact anything which is not a fact, or which may not be fairly inferred from the testimony, the court may properly decline his request.
    Van Brunt, P. J., and McLaughlin, J., dissented.
    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 19tli day of January, 1898, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 14tli day of February, 1898, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles F. Brown, for the appellant.
    
      W. C. Beecher, for the respondent.
   Rumsey, J.:

The action was brought for damages for the negligent killing of. the plaintiff’s intestate, Charles Ruppert. It was submitted to the jury after evidence had been given by both parties, and resulted in a verdict for the plaintiff, after which a motion for a new trial having been made and denied, judgment was entered and this appeal was taken. _

On the 23d day of February, 1897, the plaintiff’s intestate was driving a team of horses attached to a heavy truck up Sixth avenue. Just before reaching Seventeenth street, he started to cross the avenue so as to go west along that street. In doing so it was necessary for him to cross the tracks of the defendant’s road. As he approached Seventeenth street, driving up on the east side of the avenue, he found a pillar of the elevated road standing in the street ■and close to the defendant’s tracks, about twenty-seven feet south of the southerly curb line of the street. The next posts of the elevated road above that stood directly in the center of Seventeenth street, one on each side of the track. The truck upon which Ruppert was seated was a long and large one, being some twenty-three feet from the end of the pole to the rear of the truck. For the purpose of enabling him to get into Seventeenth street he evidently judged that it was necessary for him to begin to turn across the avenue below the pillar of the elevated road that stood just south of the street. He turned his horses, therefore, so as to cross the street diagonally, starting just below .the. post of the elevated road, and directing his course towards the roadway of Seventeenth street on the other side. This brought him across the down track of the defendant’s road, at a point just above the elevated railroad post which stood twenty-seven feet south of Seventeenth street, on the west side of the defendant’s tracks. His truck was heavily laden, and he was going at a walk. As he got upon the south-bound of the defendant’s tracks, a horse car going south was approaching Seventeenth street. These facts are not disputed. Just what the situation of affairs was after that time is somewhat in dispute, but as the jury found for the plaintiff, it must be assumed that they found the facts in his favor so far as it was necessary to warrant them in rendering a verdict.

It was claimed by the plaintiff that the car came down without stopping and struck the truck, upon the seat side of which Ruppert was sitting, with such force as to throw him to the ground, causing the fracture of his skull, from which he died The fact of the collision was disputed by the defendant, but as it was sworn to by at least one witness for the plaintiff and two witnesses for the defendant, the jury were clearly justified in finding that, it took place and that it caused Ruppert’s fall. The question remains, whether the collision was caused- by the negligence of the defendant, and whether Ruppert was guilty of contributory negligence in bringing it about. The jury might fairly have found from the evidence 'that when Ruppert reached the west track of the defendant’s road, as he went across the avenue, the approaching car was something over fifty feet from him; that it was approaching rapidly, but that there would have been no difficulty in stopping it or in checking its progress so. as to avoid the collision without seriously delaying the car in its trip. Ruppert’s truck was heavily laden and his horses were going at a walk. The jury must have found that, as he got upon the track, both he and the car were in plain view of each other and at a distance .of about fifty feet apart. They might have found from the testimony that as he got upon the track he endeavored to increase the speed of his horses, but. whether he did so to any appreciable extent may be quite doubtful. It was clearly within the evidence for the jury to find, as they must have done, that the driver made no-sufficient effort to check the speed of his car, at least until it was too late to do so, and permitted it to collide with Ruppert’s truck, before he had succeeded in getting across the avenue. Upon these facts' the question is presented as to what are .the rights of street cars as against persons who, in the pursuit of their business, have occasion to cross the track of the car at a place other than the regular crossing of the street. It must be admitted, of course, that the rights of cars in their tracks upon the street are superior to the rights of anybody going along the street or crossing it elsewhere, than at a crossing, hut .this does not mean that they have the sole or exclusive right to the use of that portion .of the street upon which . their tracks are laid. The extent of the paramount right, as it is called, is to be ascertained by considering why it exists. A street car company has acquired from the State the right to lay its tracks in the street and to run cars up and down upon those tracks. It necessarily follows from that right and the manner of construction of the car, that it can only move upon the tracks and in a line parallel with them; it is unable to turn out. It is necessary, too, for the convenience of the public who use the street cars, that their passage up and down on the tracks should not be unduly delayed. For the purpose' of enabling them to move at a proper raté of speed, and without any unnecessary obstruction, and because they are unable to turn out to avoid vehicles, but must run in the'track laid for them, it has been held very properly that within that track they have rights superior to every other vehicle which has occasion to use. the street. But superior rights do not mean exclusive rights. (Fleckenstein v. D. D., E. B. & B. R. Co., 105 N. Y. 655.) The streets are yet intended for eveiy citizen who has occasion to use them. He may come upon foot or in vehicles, up and down the street as his pleasure or his business requires, and he may cross the street backward and forward in his vehicle so far as his convenience or business incline him to do so. In doing so he must not needlessly or recklessly or willfully obstruct the street cars in theii-route, and he must use reasonable •care to keep out of their way. But he is not called upon to avoid the use of the street or to delay crossing it because a street car happens to be in sight coming towards him. If that were so, no person •could ever cross any of the main streets of this city upon which •street cars are run. He must endeavor in crossing the street so to regulate his act as that he shall use the care of a reasonably prudent man to keep out of the way of the cars and not unduly delay them in their passage. If he does that he does all that the law requires of him, and he is not guilty of contributory negligence in case a •collision occurs, if the jury find that he used reasonable care to perform his duty in that regard. It would be absolutely impossible to lay down any hard and-fast rule of law as to the duty of a person -crossing a street car track in his efforts to avoid a collision with an •approaching car. In almost every case the question of contributory negligence is one to be judged by the jury, in view of the requirement of reasonable prudence on the part of the person crossing. But the duty of the driver of the street car is also to be taken into •consideration. While he has a superior right because he cannot turn out, and because it is not lawful to obstruct his passage unnecessarily, yet in view of the fact that it is necessary for people to cross the street with trucks and with carriages in the performance •of their business, it is not permitted to the driver of a street car to go down the street at an improper rate of speed or without paying .any attention to vehicles that happen to be in his way. He is bound also to use reasonable care so to regulate the passage of his •car as not unnecessarily to collide with those persons who have occasion to use the street in front of him. (Brozek v. Steinway Ry. Co., 10 App. Div. 360; Fishbach v. Steinway Ry. Co., 11 id. 152. As he can only do that by regulating the speed of the car, it is his "duty to use reasonable care to regulate that speed to attain those ■ends. Of course it must necessarily occur that street cars will be somewhat interfered with in their passage up and down on the surface of the highway. The rights of the citizens to use the street, necessarily.involve such an interference to some extent. There isa. grave difference between the right of a steam railroad running over a track upon its own land, to which it has the exclusive title, and. the right- of a tram car running in the street which it only has aright to use in common with all tire citizens. (Smith v. Met. St. Ry. Co., 7 App. Div. 253.) This relative right is recognized by the statute which forbids. “ persons willfully obstructing the passage of cars lawfully running on a street railway.” (Penal Code, § 426.). It is not necessarily to be inferred that ¡an obstruction which is. neither careless, nor reckless nor willful, is unlawful, and everybody knows that it frequently has to take place. When one attempts-to cross the track of a street car and has approached the track at-such a distance from an approaching car that he has reasonable: ground to suppose that he will be able to cross the track, it is the= duty of the street car driver to give him a reasonable opportunity to cross, and if, for that purpose, it is necessary for him to check the speed of his car, or even stop the car entirely for a short space, it is-his duty to do it, and the person crossing the track has the right, without being charged with contributory negligence, to assume that', that duty will be performed. (Kennedy v. Third Ave R. R. Co., 31 App. Div. 30.) Here, again, is a grave difference between the duty at, the crossing of a steam railroad and the crossing of a street car-track. A man crossing a steam railroad knows that the speed of the cars cannot be checked for his convenience, and he is bound not-only to use reasonable' care to keep out of the way, but if a question arises whether he will have time in any given situation to cross the: track safely before the approach of the train, he is bound to take no-chances, and if he does fake them and is injured, he is guilty of contributory negligence, because he knows that if the car approaches, its speed cannot be checked, and that if he is on the track he must.' be struck. ' But the rule as to street cars is entirely different. The: citizen has the right to cross the track. He is bound to use reasonable care not to obstruct the passage of the car unnecessarily, but he has a right to rely upon a delay of the car in its progress to' enable, him to cross, if such delay is necessary, and for that reason contributory negligence cannot be predicated of a mere mistake in judgment,. The question in every case is: Did the approaching parties, the car driver on the one hand and the person crossing the track on the other,, use the ordinary care of reasonably prudent persons to avoid a collision under the given conditions? In the nature of things, that question must almost always be submitted to the jury. (Smith v. Met. St. Ry. Co., 7 App. Div. 253.) It was proper to submit it to a jury in this case, and there was evidence to sustain their verdict.

We have examined the exceptions, to the admission of evidence, and are satisfied with the rulings in that regard.

Stress is laid upon an alleged error of the court in refusing to-charge certain requests to find made- by the defendant. One of these was the 20th, to the effect “ that a street car hast the right of way, except at the intersection of the cross streets, and persons lawfully driving on the same tracks must not recklessly, carelessly or willfully obstruct the passage of the cars.” This was refused and excepted to. An examination of the charge shows us, however, that the relative rights of the driver and Ruppert were clearly and properly explained' to the jury. The court charged the jury as to the duty of Ruppert in the matter, and it stated in so many words that people driving on a car track have no right to recklessly, carelessly or willfully obstruct.the passage of the cars. The defendant could ask nothing more in that regard than was given him by .the charge.. Where a judge has fully and fairly explained the principles of law hearing upon the case, it is all that- either party has the right to ask for, and it is not- to be held an error that the court refuses to repeat the facts charged in another form in the language given'to him by counsel.

This is an answer not only to the exceptions to the refusal to-charge the 20th request, which has been quoted, but to several other requests as well.

It is' only necessary to notice the exception to the 18th request, which' is as follows: “ It appearing from evidence introduced on behalf of the plaintiff, and by other evidence in the case, that the accident .by which the decedent was injured did not happen at the intersection of Sixth avenue and 17th street, but at a considerable distance below the crossing, the defendant had a paramount right to that part of the street on which the track was laid on. which its car was running, for the unobstructed progress of its car .at a lawful rate of speed, and the decedent Charles Ruppert was hound, in a reasonable manner, to' respect the paramount right of "the defendant to the use of its railway track; and if the jury find from the evidence in this- case that Ruppert did not respect such paramount right of defendant to the use of its track, but was •endeavoring to cut off the car and thus obstruct, its progress at the time of the accident, and was injured while engaged in violating the .paramount right of the defendant, then the plaintiff cannot recover and the defendant is entitled to a verdict.”

A person making a request to charge, and thus putting words in the mouth of the court, is bound- to be correct in his statement; and if he overstates a proposition of law, or if, in making his request, he assumes as a fact anything which is not a fact, or not fairly to be inferred from the testimony, he has no reason for complaint if the ■court declines to charge as requested. The request is to be taken ;as a whole, and the court is not called upon to split it apart and to pick out from it that portion which is good and charge that, refusing to charge simply the portion which is not sound; but he must look- at it as a whole, and, if any part of it is incorrect, he may refuse to charge it, and no exception lies to that refusal. In view" •of this rule, this 18th request is gravely defective. It assumes, not ■only that Ruppert did not respect the paramount right of the •defendant to the use of its tracks, but that he was endeavoring to ■cut off the car and thus obstruct its progress. There is not one particle of evidence to warrant any such assumption. So far from •endeavoring to cut off the car, the jury would not have been justified in finding anything of the kind. He was crossing the track ; he had not in view an obstruction of the car, or anything like it, and there was nothing in the evidence that would have warranted the jury in finding that Ruppert was endeavoring to interfere with the car in the slightest degree. There is a vast difference between lawfully doing an act, the effect of which may be to momentarily ■obstruct the passage of a street car, and to put one’s self .on the track ■of the car in the endeavor to obstruct -it. The latter is a penal ■offense; the first is not. If there had been evidence warranting the finding that Ruppert was endeavoring to obstruct the passage of that car, it would have been sufficient clearly to find a verdict for the defendant. But there was no evidence of the kind, and the request was not warranted, and the judge was right in refusing.

There is no other exception which it seems necessary to consider.

The judgment and order should he affirmed, with costs to the respondent,.

Barrett and Ingraham, JJ., concurred; Van Brunt, P. J., and McLaughlin, J., dissented.

McLaughlin, J.

(dissenting):

This action was brought to recover damages sustained by the plaintiff as administrator of the estate of Charles Ruppert, whose ■death, it is alleged, was caused by the negligence of the defendant. The plaintiff had a verdict, and from the judgment entered thereon ■and from an order denying a motion for a new trial the defendant lias appealed.

On the trial it appeared that the deceased, on the 23d of Febru■ary, 1897, between three and four o’clock in the afternoon, was driving a truck drawn by two horses northerly on the east side of Sixth •avenue in the city of New York, and when he had reached a point between thirty and forty feet south of the southerly line of Seventeenth street he attempted to drive diagonally across the avenue, •and in so doing the truck collided with a car going south on the ■defendant’s tracks, and he sustained injuries from which he died a few hours later. When the intestate started to cross the avenue the truck was about twenty feet east of the defendant’s tracks, and the ear moving southerly at the rate of eight or ten miles an hour, was then at the northerly side of Seventeenth street. Seventeenth street is sixty feet in width. The collision occurred near the center of Sixth avenue, and as nearly as can be ascertained from the record, about twenty feet south of the southerly curb line of Seventeenth street. It did not appear that the intestate saw the ear before the collision occurred, or that he looked or took any precautions whatever to ascertain if á car was approaching before he started to cross the avenue. In the absence of such proof, either direct or inferential, the plaintiff failed to establish a cause of action, and the defendant’s motion to dismiss the complaint should have been granted.

It was necessary for the plaintiff in order to recover to prove, not only the .negligence of the defendant, but that his intestate was-free from negligence. (Whalen v. Citizens’ Gas Light Co., 151 N. Y. 70; Weston v. City of Troy, 139 id. 281; Borden v. D., L. & W. R. R. Co., 131 id. 671; Weiss v. Metropolitan Street Ry. Co., 33 App. Div. 221; Johnson v. Brooklyn Heights R. R. Co., 34 id. 271.) The collision occurred, not at a street crossing, but- . between streets, where the defendant had a paramount right to the= use of that portion of the roadway upon which its tracks were laid. That the defendant had such right is so well established that it is-unnecessary to consider that question. (Adolph v. C. P., N. & E. R. R. R. Co., 76 N. Y. 530; Fenton v. Second Ave. R. R. Co., 126 id. 625; Rosenblatt v. Brooklyn Heights R. R. Co., 26 App. Div. 600.) This right it was necessary for the decedent to recognize when he started to cross the avenue, and in view of it, to exercise such care-for his own protection as a reasonably prudent man would, have-observed under similar circumstances. He could not approach a. •point in the street where the defendant’s right of way was superior to his without exercising more care and caution than would bé necessary'for him to exercise if their rights were equal. It is .riot claimed that the speed of the car was excessive, or that it was increased after the intestate started to cross, and he had no right to suppose -that-the car would be delayed in its progress in order to enable him to-pass over the tracks in safety. It was a clear day, and there was-nothing to prevent the deceased, if he had looked, from seeing the-approaching car, and whether or not he looked is entirely a matter of speculation. If he did not look, then he did not exercise the care which the law required. A reasonably ’ prudent man does not passover the tracks of a street railroad between streets without first- # observing whether a car is approaching which may cause him injury. If the intestate looked and saw the car approaching, then he either carelessly and heedlessly drove in front of it or else supposed that he had time to cross before the car would reach "that point. If the former, the plaintiff was clearly not entitled to recover, and if the latter," the driver of the liorse car had just as much right to suppose that the truck would pass in safety as the intestate had. In other words, the facts which it is claimed establish the negligence of the driver of the car also established the negligence of the deceased. In this respect the case is precisely like that of Weiss v. Metropolitan Street R. Co. (33 App. Div. 221). There this court held, where a child eight years and four months old was struck and killed by a street car, that “ if it be conceded that the defendant was negligent in not controlling the car in such a way as to prevent the accident, the facts which establish its negligence also establish the negligence of the deceased. No other conclusion can be reached. The child and car were both approaching the same point on the track. The car had 100 feet to go and the child 21. The child traveled the 21 feet in the same space of time that the car traveled the 100 feet. She had the same opportunity of observing the movements of the car as the grip-man did her movements. If the gripman, therefore, was negligent in not seeing her and stopping the car, and thus avoiding the accident, she was equally negligent in not seeing the car or in stepping in front of it. The defendant was under no more obligation to exercise care to prevent injury to her than she was to exercise care to prevent injury to herself.”

But it is suggested, not by counsel, that the intestate had a right to rely upon the car being delayed in its progress to enable him to cross, if such delay were necessary, and for that reason contributory negligence cannot be predicated upon his mistake of judgment. This is the rule applicable to street crossings, but it is not true as applied to the place where the accident in question occurred. The ■deceased had no right to rely upon zthe car being delayed at that point to enable him to cross, because the defendant had there the paramount right of way.

A fair consideration of all the evidence introduced upon the trial, it seems to me, requires us to hold that the plaintiff failed to establish the intestate’s freedom from contributory negligence, and for that reason the judgment should be reversed.

I am also of the opinion that the judgment should be reversed because the learned trial' justice refused to charge the defendant’s 18th and 20th requests. They were as follows :

“Eighteenth. It appearing from evidence introduced on behalf of the plaintiff, and'by other evidence in the case, that the accident by which the decedent, was injured did not happen at the intersection of Sixth avenue and 17th street, but at a considerable distance below the crossing,- the defendant had a paramount right to that part of the street on which the track was laid on which its car was running for the unobstructed progress of its car at a lawful rate of speed and the decedent, Oharles Ruppert, was bound in a reasonable man ncr to respect the paramount right of the defendant to the use of it~ railway track, and if the jury find from the evidence in this •cas€ that Rüppert did not respect such paramount right of defendant tc the use of its track, but was endeavoring to cut off the car and thm obstruct its progress at the time of the accident, auci was injured while engaged in violating the paramount right of the .defendant~ then the plaintiff cannot recover and the defendant is entitled to C verdict."

"Twemt'~eth. A street car has `the right of way' except at the intersecti~n of the cross streets, and ` iersoiis lawfrilly driving on the same tracks must not reck~ess1y, care1essJ~y or wijlfully obstruct the passage of the cars.'"

There was no conflict in the evidence a~ to the piace where the collision occurred. It was not at, but several feet south of, the Seventeenth street crossing. Therefore, it must be conceded that. the defendant had a. paramount right to the use of the sti~eet at that point (Adolph v. C. P., N. & E. R. R. R. Co., 76 N. Y. 530; Fenton v. Second Ave. R. R. Co., 126 id. 625; Rosenblatt v. Brooklyn Heights R. R. Co., 26 App. Div. 600), and it was entitled to have the jury so instructed. But it is said that ti'e requests were in fact cov- ered by the main charge. With this I cannot agree. What the court did say in his main charge on the subject was that "the plaintiff'l intestate was hound to use ordinary care in crossing that trdck. He was as much bound to look out for danger as the c~tr driver was. The car driver was also bound to use ordinary care iii approaching the crossing. He was bound to~ look out if he did not heedlessly or carelessly run over a person on the track. His duties were equal as far as that particular point was concerned. Each of them, tile driver of the truck and the driver of the car, were bound to use care as far as each of them were concerned. ~. * * There was a little evidence as to the, locality where the truck was at the time it was struck by the car. Sonic of the witnesses put it at or near, oi on the crossing, and others a few feet below. Neither party had the absolute right of way there. Each party was bound to look out for the other. * * * It was the duty of the driver of the car, if he saw the plaintiff on that track, to use ordinary care to prevent the car from running into the truck. That is what I mean by saying that neither one had the absolute right of way. If the car was 100 feet off when the truck was on the car track, or 50 feet away, or any distance, * * * then it was the duty of the driver of the car not to run into the truck nor to injure the plaintiff’s intestate, and if he failed to exercise such a degree of care, then he was negligent and the company was negligent. People driving on a car track have no right to recklessly, carelessly or willfully obstruct the of cars.”

■ The instructions thus given fall far short of what the defendant requested. The defendant desired to have the jury told plainly and explicitly that at the place where the collision occurred the defendant had a paramount right to the use of that portion of the street,, and the jury should have been so instructed. It is true that the court did charge that “ people driving on a car track have no right to recklessly, carelessly or willfully obstruct the ¡massage of cars.” But this only partially covered the 20th request. Exceptions were duly taken to the refusals to charge these requests, and I think the exceptions well taken.

Upon both grounds, therefore, first, because the plaintiff failed to-prove the intestate’s freedom from contributory negligence, and, second, because the trial court erred in refusing to charge as the defendant requested, 1 think the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., concurred.

Judgment and order affirmed, with costs. 
      
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