
    Patrick J. Kelly and Sarah Dunne, as Administrators, etc., of Bartholomew Kelly, Deceased, Respondents, v. United Traction Company, Appellant.
    
      Negligence — injury to one paving a street, from a trolley car leaving the track a charge that it was the duty of the company to have the car stay on the track is improper—when a subsequent modification of this charge does not cure the error.
    
    In an action to recover damages resulting from the death of the plaintiff’s intestate, who, while engaged in laying brick on the sidewalk of a public street, was struck and killed by one of the defendant’s trolley cars, which ran off the track, it is error for the court to charge that “ it was the duty of the defendant to have their car and its apparatus and the roadbed and the rails so constructed and applied that the car would stay on the tracks,” as the effect of such charge Vasto instruct the jury that the defendant was liable simply because the car left the track, independent of whether or not the derailment was the result - of negligence on the part of the defendant.
    The fact that the court, both before and after giving the erroneous instruction, correctly charged that the happening of the accident did not fender the defendant liable, but that the plaintiff was obliged to prove that the derailment of the car was caused by the defendant’s negligence, does not render the erroneous instruction harmless, where it appears that, at the close of the charge, the erroneous instruction was prominently called to the attention of the court, and ' that the trial judge then refused to modify it.
    Appeal by the defendant, .the United Traction Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Rensselaer on the 16th day of January, 1903, upon the verdict of a jury for $4,500, and' also from an order entered in said clerk’s office on the 19th day of January, 1903, denying the defendant’s motion for a new trial made upon the minutes.
    
      Patrick C. Dugan, for the appellant.
    
      Martin L. Murray, for the respondents.
   Chester, J.:

The plaintiffs’ intestate, while engaged in laying brick on the sidewalk on the south side of Tenth street, near its junction with Oakwood avenue, in the city of Troy, was killed- by a trolley car, owned and operated by the defendant, which ran off the track and ran against him. He was in a stooping posture, engaged in his work, with his back to the defendant’s tracks, at the time of the accident.

Without considering other features of this case, we think there was an error in the charge of the learned trial justice to the jury which requires the granting of a new trial. He charged the jury that it was the duty of the defendant to have their car and its apparatus, and the roadbed and the rails so constructed and applied that the car would stay on the tracks.” At the close of the principal charge his attention was called to this part of the charge by the defendant’s counsel, who said: “ I don’t- know whether I got your honor’s language correctly, but I desire to,except to that portion of your honor’s charge wherein you say, or whatever you did say, upon this subject, that it was the duty of the railroad company to have the railroad and its tracks so constructed that the cars would stay on the track.” The court replied: “ Well, I charged that, that it is.” The defendant’s counsel: “ We desire to except to that.” This charge does not correctly state the rule of law, for it wholly eliminated, from the consideration of the jury, the question of the degree of care which the defendant was required to exercise, under the circumstances, with reference to its car, tracks and roadbed, and was practically saying to the jury that the company was liable because the car left the track.

The charge was erroneous, too, because its effect was to take from the consideration of the jury all the evidence offered on behalf of the defendant for the purpose of relieving itself of the charge of negligence, and tending to show that at the time of the accident the car and the appliances connected therewith, as well as the rails, and roadbed, were in perfect condition. To hold the defendant to the rule stated would practically be to make it an insurer against an injury caused by the accidental derailment of one of ifs cars, regardless of the fact as to whether such derailment was caused by its negligence or otherwise.

It is true that the court had earlier in its charge correctly stated that the plaintiff “ is not entitled to recover in this action simply because, an accident happened,” and followed the erroneous charge by stating: “ If from the evidence of the defendant’s witnesses, from the testimony of the experts who have sworn concerning the construction of the roadbed and the modern appliances, and all that was testified to concerning that, you arrive at a conclusion that the car left the track without any fault of the defendant and that they were in nowise negligent, either by failing to have a well built and constructed roadbed or proper appliances, or by running the car at a high rate of speed — if they were guilty of no such negligence— then the plaintiffs cannot recover.”

In view of these statements we would be inclined to hold that the portion we have criticised constituted harmless error were it not for thé fact that, when at the close of the charge, the matter was prominently called to the attention of the court and excepted to, the charge in this respect was not modified by him, but, on the contrary, was adhered to. Because of this we are not able to say that the defendant was not prejudiced by the error.

We think, therefore, that the judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event. .

All concurred; Houghton, J., not sitting.

Judgment and order reversed and new • trial granted, with costs to -appellant to abide event.  