
    Martin Rhing, Resp’t, v. Broadway and Seventh Avenue Railroad Company, App’lt.
    
      Supreme Court, General Term, First Department,
    
    
      Filed July 9, 1889.)
    
    Negligence—Street railroad—Personal injuries—Charge to jury.
    In an action for damages for personal injuries sustained by being run into, knocked down, trampled upon, and crushed by one of defendants' street cars, the court charged “ that though the agents or servants had not been careless in the management of their car prior to the happening of the accident, and although they may not have been responsible therefor, yet if after the plaintiff was knocked down, and after the horses had passed over him, and he had got under the platform of the car, and was in a perilous position, his injuries were increased by the failure of the driver to unhitch his horses at the time the car was pushed hack in order to extricate the plaintiff, he was entitled to recover. Held, error, no such cause of action being set up in the complaint. Held also, that a right of recovery for the subsequent injuries can arise only where the injury was inflicted or increased because of the doing or the omission to do some act or acts, the doing of which, or the omission to do which was other than the result of an error of judgment as to the means to be used in extricating plaintiff.
    Appeal from judgment entered on verdict, and from order denying, motion for new trial.
    
      Root & Strong (Samuel B. Clark, of counsel), for app’lt; Bohn Frankenheimer, for resp’t.
   Van Brunt, P. J.

This action was brought to recover damages claimed to have been sustained by reason of the negligence of the defendant, the allegation in the complaint being that while the plaintiff was crossing Broadway at Twenty-sixth street, a passenger car belonging to defendants with a team of horses was so carelessly driven and managed by the driver thereof, that by reason of the negligence of the driver, and without any negligence on the part •of the plaintiff, he was run into, thrown down, trampled upon by the horses, and crushed, and bruised by said car, ■and in consequence was severely injured about his body, and cut on the head, and stunned.

The answer of the defendant denied these allegations, and evidence was offered tending to prove the allegations of the complaint, and it also appeared that at the time the oar was stopped, after the plaintiff had been knocked down, that he was under the front platform of the car with his head under the front wheel, and that the car was pushed back to extricate the plaintiff without unhitching the horses, and in consequence of this alleged negligence on the part of the driver, the horses trampled on the plaintiff as he re-appeared from under the platform.

The learned court, submitting the case to the jury, •charged, among other things, that though the agents or servants had not been careless in the management of their car prior to the happening of the accident, and although they may not have been responsible therefor, yet if, after "the plaintiff was knocked down, and after the horses had passed over him and he had got under the platform of the car and was in this perilous position, his injuries were increased by the failure of the driver to unhitch his horses at the time the car was pushed back in order to extricate the plaintiff, he was entitled to recover.

This instruction may have been error because no such cause of action was set up in the complaint, and because no liability would be incurred by the defendants because of the failure of their driver to use the best means to extricate the plaintiff, they being without fault as to his getting-under the car, and if there is any exception or ruling which raises the point it is necessarily fatal to the judgment.

The court, in answer to a request of the defendant to charge, reiterated the charge that if the plaintiff was in a perilous condition, and by the failure to use ordinary care and prudence he suffered injury, the defendant would be liable, assuming the plaintiff himself not to have, in any way, conti’ibuted to it.

ío this charge an exception was duly taken. It seems to us, therefore, that the question was raised, and that it was the intention to have the jury understand that although the plaintiff might not be entitled to recover, because of his own negligence, for the original happening of the accident, yet, still, the servants of the defendant having, in the extrication of the plaintiff from his perilous position, failed to use the best method for extricating the plaintiff, and he having suffered additional injuries, he might recover.

This proposition is erroneous if no such cause of action is set up in the complaint, or if there is no such rule of law. In this proposition in view of the facts of this case, it seems to be assumed that for the happening of the original accident the plaintiff had no right to recover either because of his own contributory negligence or because the defendant had not been guilty of negligence in causing the accident.

In this condition of the proof the right of recovery for subsequent injuries incurred by reason of the fact that the driver of the car made an error of judgment as to the best means to be used to extricate the plaintiff from the position in which he had placed himself by reason of his own negligence, does not exist. A right of action under such circumstances can arise only where the injury was inflicted or increased, because of the doing or the omission to do some act or acts the doing of which, or the omission to do which was other than the result of an error of judgment as to the means to be used in extricating the plaintiff.

Any other rule would, where there were various steps in the happening of an accident culminating in the injuries suffered, authorize a division of liability as to those various steps which contributed to the happening of the whole accident. The plaintiff would not be able to recover for some of these steps by reason of his contributory negligence. But if at any stage of the happening of the accident he was free from contributory negligence, the liability of the defendant would begin, notwithstanding the fact that it had been guilty of no negligence whatever, in the initiation of the events which produced the injury. It is clear that this proposition cannot be maintained, because if the plaintiff was guilty of contributory negligence, at all, the effects of such negligence permeate the whole transaction.

We think, therefore, that the jury were allowed to take into consideration improper facts upon which they may have based their judgment and have deemed themselves authorized, simply because of the error of judgment of the defendant’s driver in extricating the plaintiff, to give the plaintiff compensation for all the injuries, which he had sustained, even for those which were initiated by his own negligence.

The judgment must be reversed and a new trial ordered, with costs to the appellant to abide event.

Cullen, J., concurs.  