
    (74 App. Div. 52.)
    HOCK v. NEW YORK & Q. C. RY. CO.
    (Supreme Court, Appellate Division, Second Department.
    June 19, 1902.)
    Street Railroads—Injury to Person on Track—Instructions—Unexpected Peril.
    Where, in an action against a street railroad company for the killing of a person crossing its track, the court instructed that, if deceased “were suddenly placed in a situation of unexpected peril, the jury were at liberty to say that he need not have exercised the same nice discrimination as if he were not in such peril,” though defendant was entitled to an instruction, if it had asked it, that the motorman was not called upon any more than deceased to exercise the same discrimination as though no danger had unexpectedly arisen, an instruction that, if the jury found that both deceased and the motorman were in the same position of unexpected peril, they must find for defendant, was properly refused.
    Appeal from trial term, Kings county.
    
      Action by Annie Hock, administratrix, against the New York & Queens County Railway Company. From a judgment in favor of plaintiff, and from an order denying defendant’s motion for a new trial, it appeals. Affirmed.
    Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.
    William E. Stewart, for appellant.
    James C. Cropsey (F. W. Catlin, on the brief), for respondent.
   WILLARD BARTLETT, J.

This is a negligence suit, brought by the administratrix of a contractor. He was 33 years of age, left a widow and four infant children, and had contributed $20 a week for the food and clothing of his family, in addition to the rent. He was run over by an east-bound trolley car of the defendant, just after he had passed in front of a west-bound car, the speed of which was slackened in order to allow him to cross. The proof in behalf of the plaintiff justified the jury in finding that the accident happened on the crosswalk, although there was evidence in behalf of the defendant to the effect that it occurred at some distance from the crosswalk. The record discloses no ground for interfering with the verdict. Negligence may well be predicated of the speed at which the plaintiff’s testimony shows the car was run as it approached the crosswalk where the deceased is said to have been struck. The question of contributory negligence was clearly one for the jury under all the recent authorities, and the verdict cannot be regarded as so clearly excessive as to warrant reversal on that ground. I have carefully examined all of the exceptions, and find none which is tenable. Only one seems to require special mention. The plaintiff asked the court to charge that, if the deceased “were suddenly placed in a situation of unexpected peril, the jury are at liberty to say that he need not exercise the same nice discrimination as if he were not in the peril.” To this request the court responded, “Certainly,” whereupon the defendant’s counsel requested the judge to charge “that, if they arrive at the conclusion that both of them were in that position, they must find for the defendant.” In answer to' this request the court said: “No. They must examine the conduct of these two men upon the principles I have given them, but always with reference to the situation in which they found themselves.” It was not error to refuse to charge that, if the jury found both the plaintiff’s intestate and the motorman in a position of peril, they must find for the defendant, although the judge would have been bound to charge, if asked to do so, that under such circumstances the motorman would not be called upon, any more than the plaintiff’s intestate, to exercise the same nice discrimination as though no danger had unexpectedly become manifest. I recommend affirmance of the judgment and order.

Judgment and order unanimously affirmed, with costs. All concur except GOODRICH, P. J., who thinks the verdict excessive.  