
    Mary Reilly, Appellant, v. The Troy City Railway Company, Respondent.
    
      Negligence—injury resulting from a collision between a wagon and an electric car on the roadwa/y of a bridge — charge to the jury.
    
    In an action to recover damages sustained by the, plaintiff, who, while driving at eight o’clock on a dark evening in a wagon over a bridge, one portion of which was occupied by the track of an electric railroad,' leaving a passageway for vehicles eight feet, one and one-fifth inches in width, was injured in consequence of the wagon colliding with a car which attempted to pass it, it is erroneous for the court to charge the jury “ that if the car could have safely passed had the horse and wagon continued on the same course they were proceeding, then it was not negligence for the car to be propelled at a reasonable speed as it approached the wagon.”
    In such a case it is for the jury to say whether, under all the circumstances of the case, the attempt to pass the wagon was negligent.
    Appeal by the plaintiff, Mary Reilly, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 23d day of April, 1897, "upon the verdict of a jury, and also from an order denying the plaintiff’s motion for a new trial made upon the minutes.
    Ho order denying the motion by the plaintiff for a new trial upon the minutes appears in the case upon appeal.
    
      J. F. Crawford and E. Countryman, for the appellant.
    
      Thomas S. Faga/n, for the respondent.
   Merwin, J.:

On the 28th of July, 1894, the defendant was engaged in operating electric motor cars over its street railway extending from the city of Cohoes to Lansingburgh and Troy. Its track extended through Cohoes in an easterly and westerly direction over and along Ontario street, passing over the bridge on that street, spanning the south branch of the Mohawk river. The plaintiff lived at Cohoes, and-on the day named attended a picnic at Lansingburgh. Upon her return home in the evening she, with a number of .other young people, took passage in am ordinary express wagon.' As this was crossing the bridge, a car of defendant came up behind it and . attempted to pass by. In doing so, the running board on the southerly side of the car collided with the hub of the northerly hind wheel of the wagon, the wagon was suddenly pushed forward about' three feet and the plaintiff was thrown out. The plaintiff claims that the collision, and the consequent injury to her, were occasioned by the negligence of the defendant. Hence, this action.

The bridge was an iron lattice bridge about three hundred feet long and not covered. Upon each side there was a footway for passengers, and between these footways was the roadway for cars and teams, a girder truss being upon each side of the roadway. The entire width of this roadway was sixteen and five one-hundredtlis feet. The car track was upon the northerly side, and the passageway for- teams in use at that time was limited to the space lying between the south side of the railway and the south line of. the roadway. This distance, according to the measurement on the part' of the plaintiff, was eight feet and one and one-fifth inches. • The running board of the car projected southerly beyond the rail sixteen and one-lialf inches. The width of the wagon from hub to hub, outside to outside, was five feet seven inches. On the roadway, close to the framework on the southerly side,' there was a guard rail four inches high and six inches wide. If the rims of' the south wheels of the wagon were in contact with this guard .rail, there would then be a space of eleven and one-fifth inches between the northerly hub of the wagon and the southerly edge of the running board of the ear.

The accident occurred about eight o’clock in the evening, and it was not quite dark. There were twelve or more people upon the wagon; it was about half way across the bridge, and the horse was going upon a slow trot. There were no passengers in the ear. Its weight was two or three tons.

The court, in its main charge to the jury, left it to the jury as a question of fact for them to say whether or not it was in itself a negligent act on the part of defendant’s employees to attempt to pass the wagon, considering the narrowness of the bridge. At the close of the charge the following occurred between the court and counsel: “ Defendant’s counsel asked the court to charge that if the car could have safely passed had the horse and wagon continued on the same course they were proceeding, then it was not negligence for the car tó be propelled at a reasonable speed as it approached the wagon. The Court: Yes, I so charge. [Plaintiff excepts.] 2nd. PTor was it negligence, under those circumstances, to attempt to pass the wagon'. The Court: Yes,I charge that. [Plaintiff excepts.] ”

This limited the jury, in their consideration of the question whether the defendant was negligent in attempting to pass, to the consideration simply of the circumstance as to whether the car could have safely passed had the horse and wagon continued on the same course they were proceeding, no matter how little the margin in fact was between the car and the wagon, or how great the risk might be of the horse swerving or lurching, as the evidence on the part of the defendant showed it did, toward the track. This allowed the jury to think that the defendant had a right to assume that the horse would not, .by the noise of the car approaching, or the ringing of the gong customary on such occasions, be startled or frightened in a way to swerve the wagon toward the track. The margin, at the most, was extremely small in view of the possible results of collision.

The court, we think, erred in charging, as matter of law, that it was not negligence, under the circumstances stated in the requests, to attempt to pass the wagon. It was for the jury to say, under all the circumstances of the case, whether the attempt in itself was negligent. There was evidence tending to show that travelers, in passing along that bridge, endeavored to avoid passing cars on the bridge, whether going in the same or the opposite direction. The defendant instructed its employees to wait, as they approached ■ the bridge, if they saw a» team coming in the opposite direction. Ho instructions seem to have been given as. to passing teams going' in same direction. The motorman saw the wagon with its heavy load before it entered upon the bridge; it passed the car while the latter was standing still —• a short distance from the bridge;

The apparent risks were such that it should not be said, as matter ■of law, that the defendant was not negligent, in incurring them.

It is urged that the error, if any, in charging the requests, was .cured hy the broader language in the main charge, and by what subsequently occurred. We think not. The error was a. material one, and is a sufficient ground for reversal.'

The appellant claims that the court also erred in submitting to the jury the question of contributory negligence. We do not perceive any error in that regard.

All concurred.'

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