
    Michael Cushing, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Negligence—collision between a cab and a.street car at a street intersection — charge that if, when the cab drove upon the trade, the motorman could not avoid the collision by the exercise of ordinary care, the plaintiff could not recover — ordinance giving the can'the right of way over the cab — fhe rights of the panties are governed, thereby.
    
    In an action brought to recover damages for personal injuries sustained by the plaintiff in consequence of a collision at á street intersection between a cab which he was driving easterly and one of the defendant’s north-bound street cars, a sharp conflict arose upon the trial as to the relative positions of the cab and the car when the plaintiff attempted to cross the track.
    
      Held, that it was improper for the court to refuse to charge that “ If the jury in ■ this case find from the evidence that while the defendant’s north-bound car was proceeding in the' ordinary and lawful course of defendant’s business, the plaintiff, while such car was in full sight, drove in front of it at a time when the car was so near that it could not be stopped by the motorman by the exercise of ordinary care, then the plaintiff cannot recover and the defendant is entitled to a verdict; ”
    That the court having received in evidence without objection a city ordinance providing, “On all fhe public streets or highways of this city, all vehicles going in a northerly or southerly direction, shall have the right of way over any. vehicle going in an easterly -or westerly direction,” it was improper for the court to charge that .at the place where the collision occurred the rights of the parties were equal, and to refuse to charge that under the ordinance the -car had the right of way over the cab.
    Appeal by the defendant, the Metropolitan Street Railway 'Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the-county of New York on the 24th day of April, 19.03, upon the verdict of a jury for $1,000, and also from an order entered in said -.clerk’s office on the 24th day of April, 1903, denying the defendant’s motion for a new trial made upon.-the minutes.
    
      Charles F. Brotan, for the appellant.
    
      Daniel F. Kiely, for the respondent.
   McLaughlin, J.:

The plaintiff, the driver of a cab, endeavored .about nine o’clock in the evening of the '25th of July, 1900, to cross from the westerly to the easterly -side of Third avenue at its intersection with Twentieth street, and in doing so sustained personal injuries by one of defendant’s north-bound cars colliding with the cab which he was driving, and he brought this action to recover damages therefor, upon the ground that the same were caused solely by defendant’s negligence. He had a verdict, and from the judgment entered thereon defendant has appealed.

The conclusion at which we have arrived renders it unnecessary to determine whether upon all the evidence the- finding that the ■defendant was guilty of negligence and the plaintiff free from contributory negligence was sustained, inasmuch as -there are at least two exceptions which necessitate a new trial.

There was presented at the close of the trial a sharp conflict -of fact between the. witnesses on the part of the plaintiff and those -on •the part -of the defendant as to the relative positions of the car and the cab at the time the plaintiff attempted to -cross the tracks upon which the north-boimd car was running;. the testimony on the part of the plaintiff tended, in substance, to show that the car was about 100 feet away, and on the part of the defendant that it was but a few feet away and so near that the car could not have been stopped and the collision prevented. This being the situation the court was requested by defendant’s counsel to charge: “ If the jury in this case find from the evidence that while the defendant’s north-bound car was proceeding in the ordinary and lawful course of defendant’s business, the plaintiff, while such car was in full sight, drove-in front of it at a time when the car was so near that it could not be stopped by the motorman by the exercise of ordinary care, then the plaintiff cannot recover and the defendant is entitled to a verdict.” The request was refused, except as charged, and an ' exception taken. This was error. The request was a proper one and should have been charged. (Muessman v. Metropolitan St. Ry. Co., 76 App. Div. 1.) The court had not covered the proposition in the main charge and the defendant was entitled to have the jury instructed in the manner requested. If the plaintiff started to cross the track on which the car was running when it was so close to him that the motorman could not stop it and prevent the collision, then the plaintiff was not entitled to recover. Nowhere in the charge is the attention of the jury called to this fact, and, therefore, to refuse to charge as requested was in effect to intimate to the jury that they might find for the plaintiff, no matter how close the car was when he drove in front of it. (Meeker v. Smith, 84 App. Div. 111.)

During the course of the trial the defendant offered, and the „ sanie was received in evidence without objection, an ordinance of the city of New York in relation to the right of way of vehicles upon the public streets which provided that “ On all the public streets; or highways of this city, all vehicles going in a northerly or southerly direction, shall have the right of way over any vehicle going in an easterly or westerly direction.” Notwithstanding this fact the coúrt charged, to which an exception was taken, that the rights of the parties at the place where the collision occurred were equal, and refused to charge, at defendant’s' request, to which an exception was also taken, that by the ordinance put in evidence the6 car which was going in a northerly direction had the right of way over plaintiff’s cab, which was going in an easterly direction. Both of these exceptions were well taken. The ordinance. expressly declares that the rights of the two vehicles were not equal, that the north-bound car had the right of way over the easterly-bound cab. The charge as made, therefore, was erroneous inasmuch as, taken in connection with the refusal to charge, it was in effect an instruction to the jury that they could disregard the ordinance. This they had no right to do. It was evidence in the case and as such entitled to be considered by the jury.

Other exceptions are urged by the appellant both as to ref usals to charge and as to the reception of evidence, but we deem it unnecessary to pass upon them inasmuch as the same may not be presented on a new trial. •

It follows that the judgment and order appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concurred; Patterson, J., concurred on first ground.

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