
    Peter Rutz, Respondent, v. New York City Railway Company, Appellant.
    
      Negligence — collision between a street car and a wagon—paramount right of the former where a street enters but does not cross the street upon which the can' is operated — right to ham the jury so charged — what charge does not cure a refusal to so charge.
    
    In an action brought to recover damages for personal injuries sustained by the plaintiff in consequence of a collision between a car, operated by the defendant on Columbus avenue, in the borough-of Manhattan, New York city; and a truck driven by the plaintiff, which collision took place while the plaintiff -was driving easterly from Seventy-eighth street -across the defendant’s track with the intention of proceeding north on the- east side of the avenue, the-defendant is entitled to have the jury charged as follows : “That inasmuch as it appears by the evidence.-that 78th Street, did.-not cross.- Columbus Avenue, and was not open on the east side, the defendant’s car had a paramount right on the track at the place of the accident, and that it was not a street crossing in law.”
    While the paramount right of the defendant at the point where the accident occurred was not exclusive but was subject to the rights of vehicles and pedestrians, and while in the exercise of such right the defendant was bound to use reasonable care in view of the situation and surroundings, the defendant was entitled to have the above-quoted proposition charged, leaving it to the plaintiff’s counsel to request the court to properly instruct the jury as to the manner in which the law required the defendant to exercise its paramount right.
    The error involved in a refusal to charge the above-quoted proposition is not cured by the fact that the court specifically, at the request of the defendant, charged that if the defendant’s motorman, at the distance of half a block from Seventy-eighth street, saw the plaintiff’s horses át the west street crossing, “he was not bound to bring his car to a stop, but had a right to believe that the plaintiff would not attempt to drive across in front of the car.”
    
      Appeal, by the defendant,, the New York City Railway Company,, from a. judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 26th day of September, 1904, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 23d day of September, 1904, denying the. defendant’s motion for a new trial made upon the minutes.
    
      Bayard H. Ames [Henry A. Robinson with him on the brief], for the appellant.
    
      Frank M. Hardenbrook [Alpheus S. Frank with him on the brief], for the respondent.
   Hirschberg, P. J.:

The plaintiff was injured by a collision in the day time between a truck which he was driving and a car operated by the defendant on the south-bound track on Columbus avenue, in the borough of Manhattan, New York city, at the corner of Seventy-eighth street. Seventy-eighth street enters Columbus avenue from, the west, but does not cross it. The plaintiff was driving from' Seventy-eighth street, and at the time of the collision was crossing the track with a view of proceeding north on the east side of the avenue.

The defendant requested the court to charge the jury that inasmuch as it appears by the evidence that 78th Street did not cross Columbus Avenue, and was not open on the east side, the defendant’s car liad a paramount right on the track at the place of the accident, and that it was not a street crossing in law.” The request was refused and an exception was taken. It should have been granted. The learned counsel for the respondent makes no claim in his brief that it does not state the law correctly, but urges that it should have been qualified by a statement that the paramount right could only be lawfully exercised in a reasonably careful and prudent manner. It is undoubtedly true that the right is not exclusive, but subject to the rights of vehicles and pedestrians, and that in its exercise the defendant is bound to- use reasonable care in view of the situation and surroundings. But unless the rights of the parties on the track at the place where the accident occurred are equal in law, the defendant was entitled to have the instruction given, leaving it. .to the plaintiff’s counsel to request proper instruction as to the manner in which the law requires the defendant to exercise its right. In Hewlett v. Brooklyn Heights R. R. Co. (63 App. Div. 423) this court reversed a judgment because the court charged the jury that the defendant’s car had “ no paramount right ” at a similar point of street bisection as that in the case at bar, and the refusal of the request in this case must be regarded, and was doubtless regarded by the jury, as equivalent to an instruction that' the defendant here had no paramount right in law as between the parties to the use of its car track at the junction of Seventy-eighth street and Columbus avenue. The cases to the contrary are considered in the Hewlett Case (supra), and they confine the rule of equal rights to streets which cross each other,, or where two streets enter another from opposite sides, but so near together as to practically constitute a continuous street. (See to the same effect Reilly v. Brooklyn Heights R. R. Co., 65 App. Div. 453.)

The respondent further insists that the error was cured by a subsequent charge made by the court at -the defendant’s request, to the effect that if the defendant’s motórman, at the distance of half a block from Seventy-eighth street, saw the plaintiff’s horses at the west street crossing, “ he was not boupd to bring his car to a stop, but had a right to believe that the plaintiff would not attempt to drive across in' front of the car.” The claim that this-instruction in any degree whatever involved the proposition that the defendant has or had a paramount right of way on the car track at Seventy-eighth street is clearly untenable. The motorman certainly was not bound to bring his car to a stop when 100 feet away from the point where the street and avenue meet, and especially when the plaintiff was at a considerable distance from the track and there was nothing to indicate that h¿ intended to cross it; but that .fact bears no necessary relation to the respective abstract rights of the parties at the point where the accident subsequently occurred.

The judgment and order should be reversed.

Bartlett, Rich and Miller, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  