
    Jacob Klimpi, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      JSegligen.ee—care required of a motorman on an electric car to prevent a collision with a truck—it is that which a person of reasonable prudence exercising reasonable ewe would, use under similar circumstances.
    
    In an action brought to recover damages for personal injuries sustained by the plaintiff in consequence of a collision at a street intersection between one of the defendant’s street cars and a truck which the plaintiff was driving, the court charged, with respect to the duty of the defendant’s motorman, “ and if yo(u find that he did use all the care that was required of him and all the ca/re that he could use at the time, then your verdict will be for the defendant.”
    
      ■Held, that the. charge was erroneous, as its’ effect was to instruct-the jury that the defendant was obliged to use an extraordinary degree of care, whereas it was obliged to exercise only that degree of care which a person of reasonable prudence exercising reasonable care would use under similar circumstances;
    That the following proposition, “if the'motorman of the defendant’s car, while operating his car with ordinary care, stopped his car as soon as he discovered that the plaintiff was about to drive in front of his car, defendant is entitled to a verdict,” if charged without qualification, would have cured the error, but that as the trial judge in response to the request to charge this proposition said, “I charge that in connection with the charge already made,” thus in effect leaving the- obnoxious instruction in the case, it did not operate to cure the error. ..
    Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Suprénie Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of June, 1903, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 12th day of June, 1903, denying the defendant’s motion for a new ..trial made upon the minutes. ’ '
    
      Bayard H. Ames, for the appellant.
    
      J. M. Bvrnbav/m,, for the respondent.
   Hatch, J.;

» The plaintiff by this action seeks to recover- damages claimed to -have been sustained by him on account of injuries received through the negligence of the. defendant. It appeared from the testimony that the plaintiff was driving a beer wagon northward along, the east side of Third avenue. As he approached One Hundredth street he saw a car coming southward about One Hundred and First street; that he had occasion then to drive across the track to the west side of the street; that he looked again as. he started to cross ' and saw that the approaching car was about in the middle of the block. Plaintiff thought that he had plenty of time to cross, made the attempt but the car struck the wagon just back of the front wheel. He was thrown to the pavement and sustained quite severe injuries. . The defendant on the other hand claimed, and gave evidence tending to support the claim, that as the car was approaching the plaintiff, he without any notice of intention so to do, turned and drove onto the track immediately in front of the south-bound car, and when the car was in such close proximity to him that it was impossible to avert the collision. These several claims were supported by witnesses upon either side and we have little hesitancy in reaching the conclusion that the evidence was of such a character as justified the submission of the questions involved to the jury.

We are, however, required to reverse the judgment for a fatal error committed in the charge. Upon the subject of care to be exercised by the motorman in the management and operation of car, the court charged “ it was the duty of the defendant’s agents or servants in charge of this car to use reasonable care in going along this street, and it was the duty of the motorman to stop the car and avoid this collision provided he had time and opportunity so to do. It was his duty to use care at all times in passing, along this street, and if you find that he did use all the care that was required of him and all the care that he could use at the time then your verdict will be for the defendant.” The defendant excepted to the charge that it was the duty of the motorman to use all the care that he could use. In ruling upon the exception the court stated, That does not state the language that I used, but it calls my attention to what you mean.” It is evident, therefore, that the court fully understood the particular point to which the defendant directed its attention. The obligation resting upon the defendant was to exercise that degree of care which a person of ordinary prudence exercising reasonable care would use under similar circumstances. The defendant was not called upon to exercise all the care that he could exercise at the particular time. Such rule would impose the duty of extraordinary precaution and substitute a more rigid rule of responsibility than the law requires of the defendant in the operation of its cars. In Lewis v. L. I. R. R. Co. (162 N. Y. 52) the charge was that if the engineer of the train, which came in contact with a vehicle at a road crossing, “ omitted to do any act which might have prevented the collision,” the defendant was guilty of negligence. This was held error, for the reason that it imposed a more enlarged obligation upon the defendant than the law required. In Leonard v. Collins (70 N. Y. 90) the charge was that if the defendant could do “ anything that could have prevented the accident ” he was guilty of negligence and such charge was held to be error. In Reardon v. Third Ave. R. R. Co. (24 App. Div. 163) in charging upon the subject of the care required in the management of vehicles by each party, the court said: “ They were bound to use the same degree of care, the same degree of prudence. Each was bound to look out for and, if possible, prevent any accident.” This charge was held to be error calling for the reversal of the judgment which had been obtained in plaintiff’s favor, although the charge as made bore as heavily upon the plaintiff as upon the defendant. Such consideration, however, did not mitigate the wrong which had been done to the defendant, •as it enlarged his responsibility for his acts beyond what the law required. These authorities are directly in point upon the question involved and are decisive in showing that error was committed in the charge. This error was not cured by the subsequent charge of the court that “if the motorman of the defendant’s car, while operating his car with ordinary care, stopped his car as soon as he discovered that the plaintiff was about to drive in front of his car, defendant is entitled to a verdict.” Such charge would have cured the previous error if it had been made without qualification. The court, however, said in answer to this request, “ I charge that in connection with the charge already made.” The effect of this was to leave the charge as originally made to stand and subjected the defendant to the ruling that it was required to exercise all the care that could be used at the time. Such was the rule of liability upon which the case went to the jury, and as it imposed a higher degree of care upon the defendant than the law imposed it was erroneous.

For this reason the judgment and order should'be reversed and a new trial granted, with costs to the appellant to abide, the event.

Fan Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ., concurred.

Judgment, and order reversed, new trial ordered, costs to appellant to abide event.  