
    Reid Ice Cream Company, Respondent, v. New York City Railway Company, Appellant.
    
      Negligence — collision between a truck and a street car—a speed of eight or ten mile» an hour is not per se an unlawful rate of speed for a street car—it may be negligent in fact.
    
    In an action to recover damages resulting from a collision which occurred in the¡ city of Hew York between one of the plaintiff’s trucks and one of the defendr ant’s electric street cars, in which it was conceded that the driver of the truck saw the car when it was at a distance of 100 feet, it is error for the court to-refuse to charge “ that, as a matter of law, eight or ten miles an hour is not an unlawful rate of speed ” for a street car.
    
      Semble, that such a rate of speed may, under all the circumstances of a particular-case, be deemed excessive and, therefore, dangerous and negligent as a matter of fact.
    Appeal by the defendant, the Mew York City Railway Company, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the plaintiff, entered on the 2d day of March, 1904,
    
      William, E. Weaver, for the appellant.
    
      Walter E.' Warner, for the respondent.
   Willard Bartlett, J.:

In this- action the plaintiff has recovered $100 damages for injuries sustained by one of its trucks in consequence of a collision ■between that vehicle and am electric car operated by the defendant through Greenwich street in the borough of Manhattan. The ■collision occurred about midnight at the intersection of Greenwich etreet with Warren street through which the truck approached the car. The theory of the plaintiff’s case was that the. defendant’s motonnan was running the car at a high rate of speed.— at least twelve miles an hour — and that he was negligent in not having It under proper control as he approached the intersection of Warren street so that he could avoid collision with vehicles approaching the track through that street. It was conceded to be a matter of no consequence whether the bell on the car was sounded or not, inas-' much as the driver of the truck testified that he saw the car when it was 100 feet distant. Under the circumstances the speed of the car was a very important element in the case, and it was essential that the jury should be correctly instructed in regard to that subject. The motorman admitted that the car was running at a rate ■of from eight to ten miles an hour at the time of the accident. ■Counsel for the defendant at the close of the principal charge requested the learned Municipal Court justice to charge the jury that as a matter of law eight or ten miles an hour is not an unlaw- ■ ful rate of speed.” The court refused to give this instruction and an exception was duly taken. I think the refusal was error which may well have misled the jury and which, therefore, demands a reversal.

As was said in Fullerton v. Metropolitan Street R. Co. (37 App. Div. 386, 389): “ There is no statute which prescribes the rate of speed at which one may run a car through the streets of the city of New York and, therefore, except in extreme cases, it cannot be laid down that to run a car at any given rate of speed in any place con

stitutes negligence as matter of law.” The mere fact, therefore, that the defendant’s car was run at the rate of eight or ten miles an hour in and of itself did not amount to a violation of law, and the defendant was entitled to have the jury so instructed. Of course that rate of speed under all the circumstances of the case might be deemed excessive and, therefore, dangerous and negligent as a matter of fact, but that is a different question. What counsel for the defendant evidently desired to have conveyed to the jury was the proposition that the railroad company could not be deemed to have violated the law merely because its car was running fast just before the accident. (See Bittner v. Crosstown Railway Co., 153 N. Y. 76.) This proposition was correct and should have been charged.

The judgment should be reversed.

All concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  