
    Nicholas Crolly, Respondent, v. The Union Railway Co. et al., Appellants.
    (Supreme Court, Appellate Term,
    February, 1905.)
    Street railways — Collision — Duty to passenger — Charge to jury. "
    A charge to the jury in an action by a passenger against a street railroad company to recover for personal injuries received in a collision, that the defendant was obliged “ as a general proposition to exercise that degree of care which would safely land a passenger at his destination” is erroneous as virtually making the defendant a insurer of its passengers irrespective of- the circumstances of the particular case.
    
    Appeal by the defendant, Union Railway Company of New York city, from a judgment of the City Court of the city of New York, entered against the defendants in favor of the plaintiff, after a trial had at trial term, before the “court and a jury.
    Henry A. Robinson (Bayard H. Ames, and F. Angelo Gaynor, of counsel), for appellant.
    Joseph H. Radigan, for respondent.
    
      
      See Zimmer v. Third Ave. R. Co., 36 App. Div. 269.
    
   Giegerich, J.

The plaintiff, while a passenger on one of the cars of the Union Railway Company, on the night of December 23, 1902, was injured in a collision between the car, which was going north on Jerome avenue, in the borough of The Bronx, and lumber protruding from the rear of a lumber truck of the defendant Yellow Pine Company, Avhich was crossing the tracks of the codefendant upon the roadway.

The judge charged the jury: “ So far as the duty of the Union Railway Company to the plaintiff was concerned, I charge you that it was obliged under the law, as a general proposition, to exercise that degree of care which would safely land a passenger at Ms destination, after it had taken that passenger upon its car,” and the defendant railway company duly excepted.

W.e tMnk this instruction is erroneous. Ho such obliga-” tion is imposed upon common carriers,, viz., to safely land a passenger' at his destination. TMs was virtually an instruction that the defendant railway company was an insurer of its passengers, during transit,, irrespective of the circumstances.

It is urged, however, that since the proof showed that the car in question descended an incline “ at an unusual rate of speed,” the defendant was bound to exercise toward its passengers the utmost care and diligence which .human prudence and foresight can suggest.” Such instruction was approved in Keegan v. Third Avenue R. R. Co., 34 App. Div. 297; affd., without opinion, 165 N. Y. 622. The facts in that case, however, disclosed a situation from which grave injury was to be apprehended, and the court in the course of its opimon, said (p. 300): .“A rule, which called upon every driver or motonqan, at all times and under all circumstances, to keep Mm self keyed up to the highest pitch of vigilance would be senseless. He should never, it is true, be heedless or forgetful of his duty. He should, in fact, at all times 'be. watchful and prepared for emergencies. When, however, the law imposes upon him a still higher degree of care, namely, the exercise of all the vigilance that human foresight can suggest, it naturally refers to conditions calling ■ for that extreme degree of vigilance. It is not so unreasonable, par example, as to demand constantly strained eyes from the lookout over a perfectly clear horizon.”

The court also quoted from, that part of the opimon in Stierle v. Union Railway Company, 156 N. Y. 684, which lays down the following rule: “ The strict rule * * * would be proper in a case where the accident resulted from a situation from which grave injury might be expected and which, therefore, imposed upon the carrier’s servants the duty to exercise the utmost skill and foresight to avoid it.”

Whether or not these principles so laid down in these cases are applicable to the present ease depends, of course, upon the circumstances. If, as claimed by the plaintiff, the situation was dangerous, the jury might, in the event of their so finding, have- been instructed in conformity with the rule last above quoted. The jury, however, were not so instructed, but the trial justice went much further and virtually told them that the railway company would be liable if it failed to safely land a passenger at his destination. This was clearly an overstatement of the carrier’s obligation to its passengers and hence, for the error so committed, the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Scott and McCall, JJ., concur.

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