
    John Moroney, Resp’t, v. The Brooklyn City R. R. Co., App’lt.
    
      (City Court of Brooklyn,
    
      General Term,
    
    
      Filed April 28, 1890.)
    
    Negligence—Charge.
    In an action for injuries sustained by reason of a collision between a. street car and plaintiff’s truck, the court charged that it was the duty of the car driver to keep entire control of his team and bo in a position to speedily apply the brake and be vigilant in observing the track so as to enable him as far as practicable to avoid injury to others. He refused defendant’s request to charge that if the driver was exercising reasonable care and in the management of the car did what a reasonably prudent man would have done under similar circumstances, defendant is not liable. Held, that the request should have been charged.
    Appeal from judgment in favor of plaintiff, entered on the verdict of a jury and from order denying motion for a new trial upon the minutes.
    
      TTios. M Pearsall, for resp’t; Morris & Whitehouse, for appl’t.
   Clement, Ch. J.

The plaintiff was driving a lumber truck on Fulton street in this city on the track of the horse railroad, and was turning out from the track when a car of the defendant’s line struck the rear of his truck with such force as to throw him upon the ground, whereby he sustained injuries. The plaintiff obtained a verdict at the trial term, for $1,000, and from the judgment entered thereon, the defendant appeals.

The counsel for the defendant requested the court to charge: that if defendant’s driver was exercising reasonable care, and, in the management of his car, did what a reasonably prudent man would have done under similiar circumstances, the defendant is not liable.” The court declined to charge in that respect any different from what had already been charged, as to the measure of duty of the driver. In the charge we find as follows; “I charge you it was his duty, while he was driving that car, to keep entire control of his team, as far as practicable; to be in a position to speedily apply the brake, and to be vigilant in observing the track, so as to enable him as far as practicable to avoid injury to others.” The learned judge charged the jury the same words as were used by Judge Grover in the Mangara case, 38 N. Y., 455, 456, but there, the plaintiff was an infant between three and four years of age, .and while it may not have been error to use the words “as far as practicable,” in the case before us, yet we think that the request of the counsel for the defendant should have been charged, Murphy v. Orr, 96 N. Y., 14, for the jurors could not understand, from the charge, whether the driver of the car was bound to exercise reasonable care under the circumstances, or the highest degree of care.

In view of our conclusion on this point, we are not called upon to decide the other questions in the case.

Judgment and order denying new trial reversed, and a new trial granted, costs to abide the event.

Yan Wyck, J., concurs.  