
    John Reilly, Respondent, v. The Third Avenue Railroad Co., Appellant.
    (Supreme Court, Appellate Term,
    February, 1896.)
    1. Railroads — Street crossings — Right of way.
    Street ears have no right of way over other vehicles, at the intersection- of streets, but the right of each to cross should be exercised in a reasonable- and careful manner, so as not to unreasonably abridge or interfere with the rights of the other.
    3. negligence — Contributory — Car tracks.
    It is not contributory negligence, as matter of law, to attempt to drive across street-car tracks at a street crossing when a ear is eighty feet distant.
    3. Trial — Charge.
    A refusal to charge that if the jury And that defendant’s witnesses are entitled to be believed equally with the plaintiff’s, the defendant is entitled to a verdict, is proper. *
    4. Same — Credibility of witnesses.
    Where the evidence is conüicting, an instruction that the jury are not bound to believe the testimony of any witness, but may disregard the testimony of any of the witnesses; and that the same rule appljed to the witnesses in the employ of defendant, is not erroneous.
    ■ Reilly v. Third Ave. R. R. Co., 14 Mise. 445, affirmed.
    Appeal by defendant from judgment of the General Term of the City Court, affirming a judgment entered on a verdict in favor of plaintiff.
    Hoadly, Lauterbach & Johnson (H. L. Scheuerman, of counsel), , for appellant.
    0. Sheldon Carothers, for respondent. ~,
   McAdam, J.

The action is to recover damages for personal injuries to the plaintiff, caused by the negligence of the defendant.

On the afternoon of April 16, 1894, the plaintiff was driving a one-horse, two-wheeled tipcart, loaded with dirt, along Fortieth street in an easterly direction toward the East river. When about to. cross Third avenue at that street, just as he was going upon the crossing of the west side of the avenue, he observed one of defendant’s cars going up town upon the easterly track,' about 200 feet or a block away, and continued driving across the avenue, thinking he had ample time to cross the track before the car reached him. When the head of the horse reached and was “ just upon ” the easterly or up-town track, the defendant’s car was then, as estimated by the plaintiff, eighty feet away, and although the car was going at the rate of seven miles an hour, as estimated by the plaintiff, he testified that it did not slacken its speed, “not one jot” The plaintiff put up his hand for the gripman to keep back, and drove as fast as he could with his heavy load, striking his horse with the ends of the lines, so as to get out of the way. of the car. H-e was almost clear of the track when the front dashboard of the, ear struck, the tail end of the cart, hitting the heel stick of the cart'; the ear pushed and knocked the cart around and off the track, and the plaintiff was thrown off and "under the front wheel of his cart. The horse started and pulled the cart wheel ever plaintiff’s right leg, breaking it; and he also received bruises upon his head, a slight scalp . wound, and some injury to the hones of one of his fingers. ' The plaintiff was subsequently taken to a police station, and from thence in an ambulance to Bellevue Hospital, where he remained for over five weeks. ■ .

The facts stated were sufficient to entitle the plaintiff to go to the jury on the question of negligence on the part of the defendant and freedom from fault on the part of the plaintiff.

The injuries were, sustained at a street crossing; both vehicles had a right to cross, and neither had any right superior to the other. The right of each should be exercised in a reasonable and careful manner so as not to unreasonably abridge or interfere with the rights, of the other. O’Neil v. R. R. Co., 129 N. Y. 125, 130.

In Mills v. Brooklyn City R. R., 10 Misc. Rep. 1, the plaintiff, when at a distance of twelve feet, attempted to cross the defendant’s tracks when an approaching car was but sixty feet distant. The court refused to charge, as matter of law, that the plaintiff was guilty of contributory negligence,' and held it was plainly a question for the jury to determine. It is apparent that if a person about to cross the tracks of a city railroad at a crossing were to wait until no car was in sight, the traffic of a city would he almost suspended in certain quarters.

The defendant requested the court to chárge that “ If the jury .find it is a fact that the defendant’s witnesses, are entitled to he believed, equally with the plaintiff’s, then- the defendant is entitled to a verdict.” The court declined to so charge, saying, “ The value of the testimony is for the jury.” There is no force in the exception taken to this refusal

In Dolan v. Delaware & Hudson Canal Co., 71 N. Y. 285, the court, at page 290, said: “It is not strictly proper to refer to the testimony of a witness and ask the court to charge that if the jury believe that witness they must find in a certain way, or that a certain legal conclusion follows, because it prevents the jury from construing the evidence and determining what facts it does establish.” * * * This would conclude the jury from determining what particular facts Murphy’s evidence, if truthful, did establish; the time when, the place where and the character of the signals given, and also to determine the effect of any discrepancies or ambiguities there may have been in his evidence.” The court, therefore, properly told the jury the value of the testimony was for them to determine.

The defendant also requested the court to charge that “ The jury are not bound to believe the testimony of the plaintiff, even though it were not contradicted or impeached.” The court declined to so charge, because “ It assumes a condition of things that don’t exist; it is contradicted.” Ho exception was taken to this refusal, and the court voluntarily charged that “ The jury are not bound to believe the testimony of any witness; you, gentlemen, may disregard the testimony of any of the witnesses.” The plaintiff’s counsel then contended “ that the same rule applied to all the witnesses in the employ of the defendant; ” the court said, “ Certainly,” and the defendant excepted.

As there was a direct conflict between the evidence given by the plaintiff and his witnesses on the one hand, and that given by the defendant’s witnesses on the other, the charge was unobjectionable, particularly when construed with what preceded it. The defendant’s employees were not wholly disinterested. Kavanagh v. Wilson, 70 N. Y. 177.

The charge as a whole conveyed to the jury the correct rule of law. The rights of the defendant were fully protected; and where language employed is capable of different constructions, that construction will he adopted which will lead to an affirmance of the judgment, unless it_ fairly appears that the jury were or might be misled. -See cases collated in Baylies Hew Trials, 182, 183. There was nothing misleading in the charge made.

The court did not charge, ás in Uransky v. R. R. Co., 37 N. Y. St. Repr. 543; 13 N. Y. Supp. 670: “ That the defendant’s employees were not disinterested witnesses, and their evidence should be subjected to as severe criticism as the plaintiffs.” Nor did the court in any manner refer to the defendant’s employees as interested witnesses. • The right to . disbelieve them was .impliedly placed upon the ground that they were contradicted; hence, it . was for the jury to determine for themselves, from the inherent probabilities of the case, which of the several witnesses on either side was telling the truth.

We find- no error, and the judgment appealed from must .be affirmed, with costs.

Daly, P. J., and Bischoff, J., concur.

Judgment affirmed, with costs. .  