
    Mary Collins, App’lt, v. The Long Island Railroad Co., Resp’t.
    
      (New York Superior Court, General Term,
    
    
      Filed May 2, 1892.)
    
    Negligence—Charge—Joint negligence oe driver and railroad.
    In an action for injuries received at a railroad crossing, caused by a collision between a train and a hired carriage in which plaintiff was riding, where the facts were such that the jury might find that the railroad and the driver were jointly negligent, it is error for the court to refuse to submit the question of joint negligence, and to leave the jury to determine whether the railroad itself or the driver was negligent.
    
      Appeal by plaintiff from judgment for defendant entered on verdict and from order denying motion for new trial made upon the judge’s minutes.
    
      E. C. James and P. G. Gedney, for app’lt; E. B. Hinsdale, for resp’t.
   Per Curiam.

The action was for damages from the alleged negligence of defendants. The plaintiff was in a carriage, hired at a livery stable and driven by a man from that stable. The driver was proceeding to cross the defendants’ railroad when a train was approaching. The carriage was on the track when the train struck it. The plaintiff was thereby hurt. On the trial the plaintiff’s counsel asked the court to charge the jury, that if the negligence of the defendant contributed to cause the injury, then it is no excuse to the defendant that the driver may have been negligent. The court recognized the principle of law involved in the proposition, yet believed it to be inapplicable to the facts of the case. “ I think in this case the controlling question is, was this the negligence of Burke the driver or was it the negligence of the railroad.”

It seems from the facts as they appear on the appeal, that the jury might have found that both the driver and the railroad were jointly negligent. It was admitted on the trial that the negligence of the driver could not be imputed to the plaintiff This question of joint negligence was not sent to the jury. They were only asked if the railroad by itself was negligent or if the driver by himself were negligent. The plaintiff did not have the benefit of a finding from the jury whether each was partly negligent, and therefore both jointly negligent. For this reason there should be a new trial.

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

Sedgwick, CL J., and Freedman, J., concur.  