
    Catherine Scott, Adm’rx, Resp’t, v. The Third Ave. R. R. Co., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 11, 1891.)
    
    1. Negligence—Charge.
    In an action for the death of plaintiff’s intestate no gross negligence on the part of defendant was shown. The court charged that “ there may be mutual negligence, and yet one party have a right of action against the other,” and “the plaintiff may recover, notwithstanding his own negligence exposed him to the risk of injury, if the defendant, after becoming aware of the plaintiff’s danger, failed to use ordinary care to avoid injuring him.” Held, error, and that it was not cured by a charge that if the negligence of the dead man in any manner contributed to the collision which resulted in the injury the verdict must be for the defendant.
    2. Same.
    A refusal of a request to charge that the jury are not to draw any deductions against either party from objections made and evidence excluded is erroneous, as such refusal affirms the converse of the proposition.
    Appeal from judgment on verdict.
    
      Wm. K Cohen, for app’lt; Geo. W. Wilson, for resp’t.
   Brady, J.

This action was brought by the plaintiff to recover damages for the loss of her husband, who, it was alleged, was killed by the negligence of the defendant. During the trial several exceptions were taken by the defendant and several also to-the charge, refusals to charge as requested by the defendant and to requests to charge by the plaintiff which were granted. In the view taken of some exceptions it will not be necessary to consider the others. It was charged as follows: “ There may be mutual negligence, and yet one party have a right of action against the-other.”. And, also, “The plaintiff may recover, notwithstanding his own negligence exposed him to the risk of the injury, if the defendant, after becoming aware of the plaintiff’s danger, failed to use ordinary care to avoid injuring him.” For the accuracy of the first request excepted to the learned counsel for the plaintiff relies chiefly upon the cases of Thomas v. Kenyon, 1 Daly, 142; Thurber v. H. B., M. & F. R. R. Co., 60 N. Y., 326; Murphy v. Orr, 96 id., 14; Seybolt v. N. Y., L. E. & W. R. R. Co., 95 id., 562, and Moebus v. Herrmann, 108 id., 349; 13 N. Y. State Rep., 648.

In Thurber v. Harlem B., M. & F. R. R. Co., the plaintiff was a boy about nine years old. He was knocked down by one of the horses attached to the defendant’s railway cars, and run over while in the act of crossing the Boston road, in the town of Morrisania, a part of which is occupied by their railway. The accident oc-' curred in midday, and the plaintiff was in plain view of passengers and the person who was acting as driver. All the witnesses agreed that the car might have been stopped while running over the space of a few feet, and a very slight check on the speed at which it was running would have prevented the collision and consequent injury.' The omission of the driver to check the progress of the car was said to be culpable negligence, for which the defendant must respond, unless, said the court, it appears from the ■whole case, that the injury is not attributal to that cause. ” The question of contributory negligence was considered, nevertheless, and regarded as. a controlling element. This is not, therefore, an authority for the proposition that the plaintiff may recover if the defendant, after becoming aware of the plaintiff’s danger, failed to use ordinary care to avert it It was a case of culpable negligence, gross negligence, displaying a reckless disregard of the obligations'of duty, an indifference, cruel and wanton, of the safety of life and limb upon a public highway. It is correctly asserted, even in this state, where the doctrine of negligence is limited as contrasted with other states, that defendants may be held responsible for injuries, received on the highway resulting from their gross negligence, amounting to willful indifference or disregard of the protective duties which they may owe to the public, but that rule is not applicable to this case, assuming it to exist in this state, inasmuch as the defendant’s conduct does not present the elements which must be present.

When, indeed, these are the features of the defendant’s conduct, the plaintiff’s contributory negligence cannot be invoked by them for protection. As justly said in Beach on Contributory Negligence, § 22, p. 69, “ when the wrong doing of the defendant is merely negligence, the contributory negligence of the plaintiff may operate as a defense; but when the defendant’s conduct is wanton and willful, it is no longer negligence, and the question of the plaintiff’s conduct as a defense cannot arise.” But to pursue these cases, in Murphy v. Orr the plaintiff was an infant between three and four years of age, and the appellant attributed no want of care by the plaintiff. The question was as to the sufficiency of the proof of the negligence of the driver of the horses attached to a truck, which was considered abundant. In Seybolt v. N. Y., L. E. & W. R. R. Co., there was no question involving in any way the contributory negligence of the decedent who, at the time he was killed on the defendant’s road, was there as a postal clerk. In Moebus v. Hermann, 108 N. Y., 349; 13 N. Y. State Rep., 648, the person injured was a lad of seven years, and the jury found that the child was not careless, but the defendant’s driver was negligent, and this finding was made after the propositions on which the case was made to turn were formulated with due regard to the preservation of every legal right of the defendant The doctrine of contributory negligence was carefully observed and presented. The liability of the defendant as asserted in the charge under consideration was not declared in that case or the principle advocated, although it was said that the driver either saw the child and recklessly drove over him, or failed to see him because of inattention; that is, he was looking another way and conversing with a fellow servant, a fact approaching and suggesting the doctrine of gross or willful negligence. The case of Thomas v. Kenyon was brought to recbver damages caused by the negligence of the defendant in permitting water to run from his premises upon those of the plaintiff. In that ease it is said there may be mutual negligence, and yet one party have a right of action against the other. This is the formula adopted by the plaintiff’s counsel herein taken from that case and employed as we have seen. 'The illustration of this proposition shows how inappropriately it was invoked herein. It is, ■ “ If a man negligently lie down and fall asleep in the middle of the public road and another failing to exercise ordinary care should drive over him, the party injured would have a right of action against the other,” and the cases cited to sustain it are Kerwhacker v. C. C. & C. R. R. Co., 3 Ohio St., 172; Trow v. C. R. R. Co., 24 Ver., 494; Davies v. Mann, 10 Mees. & Welsby, 546, and Butterfield v. Forrester, 11 East., 60.

In Trow v. Vt. Central R. R. Co., Kerwhacker v. C. C. & C. R. R. Co., and Davies v. Mann, the doctrine declared is that the plaintiff may recover if he have used ordinary care to avoid the injury sustained, but this is only' another method of stating the proposition that he may recover if he be free from contributory negligence. If he could avoid the injury by the exercise of ordinary care, he should do so, and the omission of that duty would undoubtedly show negligence. How far these authorities sustain the bold proposition laid down in the case of Thomas v. Kenyon, may be easily understood

This case illustrates the danger of employing detached sentences taken from opinions and urging them upon the attention of the trial court evidently without sufficient consideration of their bearing upon and relation to the case in hand, and which at first blush seem to be applicable because expressive of an instinct of natural justice, but which have only a special significance, and that wholly dependent on facts upon which they must rest. There is no adjudication in this state in a case kindred to this which declares the proposition that there may be mutual negligence and yet one party have a right of action against the other. See on this subject Wilds v. R. R. Co., 24 N. Y., 430; Cordell v. N. Y. C. R. R. Co., 75 id., 330.

If the proposition had been that a recovery might be had, although there was mutual negligence, provided the defendant’s conduct was wanton and wilful as contradistinguished from ordinary negligence, it might be sustained by authority to be inferred from adjudication of the qourt of last resort in this state, but not otherwise, inasmuch as the authorities are super-abundant declaring that the person injured must be shown to have been free from contributory negligence. The appellant as we have thus seen has two points, therefore, favorable to a reversal of the judgment, namely the charge that the plaintiff may recover notwithstanding his own negligence exposed him to the risk of injury if the defendant after becoming aware of his danger failed to use ordinary care to avoid injuring him, and the farther unqualified charge that there may be mutual negligence and yet one party have a right of action against the other.

It is supposed that the charge that “ If the negligence of the dead man in any manner contributed to the cause, the collision which resulted in the injury, the verdict must be for the defendant,” overcame the errors mentioned ; but this is incorrect. The charges considered were pointed, specific, and were so broad that standing upon the record unrecalled they were fraught with danger to the defendant’s rights.

It must be further said that the defendants were entitled to the charge refused, namely, that the jury were not to draw any deductions against either party from objections made and evidence excluded, a request made doubtless to protect them from the prejudicial impressions that might be created by a close contest and ingenious effort and device, resorted to by their counsel unsuccessfully. It is secondary in importance, but'the refusal to charge it affirmed the converse of the proposition, namely, that the jury could draw deductions against either party from objections made and evidence excluded. The evidence on the part of the plaintiff was such as to require careful consideration of the question of negligence on both sides of the controversy, and the issue should have been left unembarrassed by any element which would permit erroneous conclusions to be indulged prejudicial to the defendant. The struggle by them through their counsel to avoid responsibility was marked and impressive from the numerous objections and exceptions taken.

- Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., and Daniels, J., concur.  