
    Edward A. Binsell, Respondent, v. Interurban Street Railway Company, Appellant.
    
      Collision between a wagon and a street- car — charge as to the right of the driver of the wagon to cross if the car were fifty feet from him.
    
    In an action brought to recover damages resulting from a collision between a wagon driven by the plaintiff and one of the defendant’s street cars, the court charged the jury as follows: ‘1 Now, of course, if the horse was walking, and this car was fifty feet away, he would have a perfect right — that car going at a reasonable rate of speed, and he within ten or fifteen feet of a rail at a ' crossing, a regular crossing he would have a perfect right to undertake to .. cross that track if the car was fifty feet from him.”
    
      Held, that the charge-was erroneous;
    
      That it was equivalent to the direction of a verdict in favor of the plaintiff in the event that the jury reached the conclusion that, at the time the plaintiff undertook to cross the defendant’s tracks, the relative distances of the vehicles from the point of the collision were as stated by the court, whereas the question was one of fact for the jury whether, under all the circumstances of the case, the defendant was negligent and the plaintiff Was free from contributory negligence.
    Appeal by the defendant, the Interurban Street Railway Company, from a judgment of the Municipal Court of the city of Mew York, borough of Queens, in favor of the plaintiff for $155.35, entered on the 25th day of September, 1903, upon the verdict of a jury-
    
      William E. Weaver [Henry W. Goddard with him on the brief], for the appellant.
    
      Melville J. France, for the respondent.
   Hirschberg, P. J. :

The accident which furnishes the basis of the judgment for damages which the plaintiff has recovered occurred in the daytime at the corner of Lexington avenue and Thirtieth street in the borough of Manhattan. It was occasioned by a collision between one of the defendant’s cars and a wagon driven by the plaintiff. On the question of the plaintiff’s contributory negligence the court charged the jury as follows: “Mow, of course, if the horse was walking, and this car was fifty feet away, he would have a perfect right—that car going at a reasonable rate of speed, and he within ten or fifteen feet of a rail at a crossing, a regular crossing — he would have a perfect right to undertake to cross that track if the car was fifty feet from him,” etc. To this portion of the charge the defendant excepted, and the exception presents the only question necessary to be considered on the appeal.

The charge was equivalent to the direction of a verdict, in favor of the plaintiff in the event that the jury reached the conclusion that at the time the plaintiff undertook to cross the defendant’s tracks the relative distances of the vehicles from the point of collision were as stated by the court. It removed from the consideration of the jury both the question of the defendant’s negligence and that of the plaintiff, and instructed them that the controversy should be determined upon the theory that as matter of law the plaintiff when walking his horse at. a distance of ten or fifteen feet from the track had a right to undertake to cross which was “ perfect,” notwithstanding an oncoming car was only fifty feet away. The wagon and car did come together without any'increase in the speed of either, and whether the result was owing to the negligence of those in charge of the vehicles, was a question of fact and not of law. It may he conceded that the jury would be entitled to relieve the plaintiff from all imputation of blame under the circumstances as matter of fact, but the proposition presented by the trial court was certainly not a sound conclusion of law in view of the many other considerations of relative speed and behavior of the parties which necessarily enter into its solution. Among other things it wholly ignored the question of the distance of the car from the horse at the time the latter was actually driven upon the track and assumed as the law that, starting at the distances named and approaching, the one at a walk' and the other at a reasonable rate of speed, the vehicles could only come together by virtue of some act of negligence on the part of the defendant, to which it was impossible for the plaintiff to contribute. Whether or not the plaintiff was at fault depended somewhat at least upon the condition of things at the time he actually drove upon the track, when he possibly might have avoided the accident by the exercise of such care as the situation then' presented may have required, and when it may have been too late for the defendant’s motorman to have prevented the collision, all which considerations are eliminated in the portion of the charge excepted to. Fegligence is not a mere question of arbitrary measurement, but is generally one for the judgment of a jury addressed to the facts of the particular case_ (Wimpleberg v. Yonkers Railroad Co., 83 App. Div. 19 ; Reilly v. Troy City Railway Co., 32 id. 131 ; Connor v. Metropolitan Street R. Co., 77 id. 384 ; Salt Springs National Bank v. Sloan, 135 N. Y. 383 ; Kellegher v. Forty-second St., etc., R. R. Co., 171 id. 309.)

The learned counsel for the respondent cites the case of Lawson v. Metropolitan Street R. Co. (40 App. Div. 307) as authority in support of the charge herein. In that' case the car was about fifty feet-away when the decedent’s horse reached the track, and it was held (per head note) 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.”

The error was not cured by the other portions of the charge, nor can it be said that the charge stated the law correctly taken as a whole, and the judgment must, therefore, be reversed.

All concurred.

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