
    Morris Schoenholtz, Respondent, v. The Third Avenue Railroad Co., Appellant.
    (Supreme Court, Appellate Term,
    February, 1896.)
    1. Trial — Requests to charge.
    Requests to charge which are incomplete "in themselves, not being properly connected or made dependent on other facts, are improper, and it is error to charge them.
    2. Same.
    A request to charge which assumes a fact that it is for the jury to determine is improper.
    Schoenholtz v. Third Aye. R. R. 'Co.,-14 Mise. 461, reversed.
    Appeal by defendant from a 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.
    M. Strassman, for respondent.
   McAdam, J.

The action was to. recover for injuries to the plaintiff and to a wagon and the property contained therein, sustained through a collision between the wagon which the plaintiff was driving and one of defendant’s cable cars at Third avenue and Fifty-third street.

The trial judge, in his charge, instructed the jury that, before the plaintiff could .recover, he was bound to satisfy them, by a preponderance of proof, that he was entirely free from fault himself, and that the occurrence was the result solely of the negligence of the defendant or its- servants, and left these questions to them on all the evidence for their determination.

The charge itself is unobjectionable, and the grounds' urged by the defendant for reversal are based almost entirely on charges made at the request .of the plaintiff’s counsel, who undertook,to improve on what the trial judge had said by making -twenty-eight separate requests; defendant’s counsel modestly contenting himself with seventeen. Ten pages of the printed record are devoted to these instructions, which need not be gone over in detail. It is sufficient to say that the pláintiff insisted on putting specific requests, incomplete in themselves, not being properly connected • or -made dependent on other facts, and in this way- the jury were directed, in a fragmentary manner, as to what constituted negligence and contributory negligence, and what did not constitute such want of care in this particular instance.

The requests charged which are ' particularly objectionable follow:

“ Eighteenth. If the jury believe the gripman failed to give, the plaintiff a. reasonable opportunity to cross the tracks, and ran him down in consequence thereof, then the plaintiff is entitled to recover, provided he himself did not contribute to the - negligence.” This assumes that the- gripman saw the plaintiff in time to avoid him, and, instead of avoiding him, ran him down. A request to charge is improper which assumes a fact that it is for the jury to determine. ‘

“ Twenty-first. If the jury believe that the gripman of the car saw the wagon on the track while in the act of crossing it, it was the gripman’s duty to keep his car under control, and to allow the wagon to cross in safety.” The propriety of this request depends upon whether the ■ jury believed the plaintiff’s version of the collision; and, irrespective of that, it implies negligence on the part of the gripman.'

“ Twenty-fourth. The plaintiff may recover, notwithstanding his own negligence exposed him to the risk of injury, if the gripman, after becoming aware of the plaintiff’s danger, failed to use ordinary care in preventing the collision.” This might be so if the gripman, on observing the plaintiff’s danger, could have avoided the collision by the use, of ordinary care.

The last impression which was made upon the jury by these directions was misleading and constitutes error. ¡Nicholson v. Conner, 9 Daly, 278.

• It was said on the argument that the stenographer was more liberal in allowing the defendant exceptions than he ought to have been; but that is matter which- should have been settled in the court below, and with which we have nothing to do. We must deal with the exceptions found upon the record returned to us for review.

It follows that the judgments of the Trial and General Terms " must -be reversed and a new 'trial ordered, with costs to the appellant to abide the event.

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

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