
    Michael Sheehy, Respondent, v. The Utah, Nevada & California Stage Co., Appellant.
    (New York Superior Court—General Term,
    December, 1895.)
    1. Negligence—Fast driving — Charge.
    In an action for personal injuries sustained by plaintiff while driving a street car, by reason of a collision with a mail wagon belonging to the defendant, the court charged that if the driver of the mail wagon was driving faster than-at the rate of five miles an hour it was a violation of section 1932 of the Consolidation Act, and'that the jury might take that fact into consideration on the question of defendant’s negligence.' Held, no error.
    2. Appeal — Municipal ordinance cannot be introduced for the . FIRST TIME OR.
    A municipal ordinance cannot be introduced for the first time on appeal for the purpose of reversing a judgment.
    
      Appeal by defendant from judgment' entered upon the verdict of a jury and from order denying defendant’s motion for a new trial. '
    
      Walter Alexander, for appellant.
    
      G. Washbourne Smith, for respondent.
   Freedman, J.

There was no .error in the denial of defendant’s motion for a dismissal of the complaint. at the close of plaintiffs case and at the close of the whole case. Tile ques> tions relating to defendant’s negligence and plaintiff’s eon-' . tributory negligence were, upon the facts as they appeared, for the jury, and the verdict as rendered cannot be said to be against, the- evidence or against the weight of the evidence. -ETor should it be disturbed as excessive.,

The instruction given to the'jury-that i.f .they found that the driver of the mail w;agon was. driving faster than at the ' rate of five miles an hour, that it was. a violation of - section 1932 of the laW known as the Consolidation. Act, and that the jury might take that into consideration as bearing upon the question of defendant’s negligence, does not call for reversal.' The defendant took only-a general exception to it. ETo- • ordinance of the common council in conflict with that section was-brought to the. attention of the trial judge, and consequently, if any such ordinance, does exist and were otherwise available, it cannot be introduced on appeal for the first time for the purpose of reversing, the judgment. Porter v. Waring, 69 N. Y. 250. The instruction as given left it to the-.jury to .find whether defendant’s driver .-was driving, faster ' than at the rate of five miles an hour, -and, if he did, what effect such driving liad under all the other circumstances upon-the question -of defendant’s, negligence. Thus considered,, the instruction did not- involve error. The charge, as. a whole, was more favorable to the defendant than the defendant 'was entitled to, for it gave to defendant’s driver as the driver of a mail wagon, as matter of law, the right of way as against the ■ plaintiff while driving a street railroad "car, a. proposition .which it would be difficult to substantiate if it became necessary.

Upon the whole case substantial justice seems to have been done, and no ground appears to exist for reversing the judgment or order appealed from.

The judgment and order should he affirmed, with costs. .

MoAdam and Gildersleeve, JJ., concur.

Judgment and order affirmed, with costs.  