
    Georgia B. Dickinson, as Administratrix, etc., of Frank L. Dickinson, Deceased, Respondent, v. Thomas C. Platt, as President of the United States Express Company, an Association Consisting of Seven or More Members, Appellant.
    Fourth Department,
    December 28, 1906.
    Negligence—collision between bicyclist and wagon—failure to show freedom from contributory negligence — erroneous charge as to law of road.
    When it appears that the plaintiff’s intestate, while riding; a bicycle, along the center of a city street at the rate of five or six miles an hour came into collision with an approaching express wagon which had just turned into the street from a side alley, without making any effort whatever to avoid the wagon, although there was a space of eight feet between the wagon and the curb within which- he could have passed, there is a failure to show freedom from contributory negligence.
    It is error to refuse to charge that the defendant’s driver was not negligent, although upon the wrong side of the street, if he conducted himself with reasonable care while there.
    Appeal by the defendant, Thomas 0. Platt, as president, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Onondaga on the 21st day of May, 1906, upon the verdict of a jury for $7,000, and also from an order entered in said clerk’s office on the 31st day of May, 1906, denying the defendant’s motion for. a new trial made upon the minutes.
    A. H. Cowie, for the appellant.
    
      Charles G. Baldwin, for the respondent.
   Nash, J.:

This action is brought to recover damages for the death of the plaintiff’s intestate, resulting from a collision of the decedent, while riding upon a bicycle, with an express wagon of the defendant.

The accident occurred about twelve o’clock noon of the 26th of October, 1905, on Clinton street, in the city of Syracuse. Clinton street extends nortli and south• near the place of the accident Walton -street runs, into ..Clinton street from the west, but does, not cross Clinton ;■ Clinton street and Walton.street are each thirty-eight feet wide from curb to curb. The express wagon which collided with the decedent came out from a narrow alley which runs into Clinton street from the east. The width of the alley is thirteen and one-half feet; the center of the alley is nineteen • and one-fourth feet south of the south curb line of Walton street extended across' Clinton. ...

The witnesses .describe the bicycle rider as proceeding southerly on the right-hand side of Clinton street,, three or four feet distant' from the west curb, until he got opposite .Walton street, .where there Were a Couple of depressions in the asphalt pavement, and either to avoid these depressions o.r to avoid a team of horses coming out of Walton street at the time from the west, or for some other reason, he swerved around east of the depressions, going toward the middle of Clinton street, and immediately after, and at a point near -the middle of" the street, he collided with the; left thill of the express wagon.

The express wagon had just come oiit of the alley which runs into Clinton street from the east. The driver, in coming out of the alley, turned to his right to go north on Clinton street. North of-the alley, and to the right, as he emerged, there is a plumbing establishment^ spoken of in the evidence as McClure’s. The defendant’s; driver and some of the other witnesses state that a wagon-was standing near the curb in front of that store, just north óf the alleyway, and the driver says, in order to make the turn to the north, he liad to go around that wagon, which took him out into Clinton street farther than he would otherwise have gone.

■ The plaintiff’s witnesses who saw the accident and observed the manner in which the collision occurred gave testimony as follows :

Harry W. Hart: “I am employed by Neal &, Hyde. Their place of business is- on the northwest corner of Walton street and Clinton street.- * * * I remember the accident to Mr: Dickinson. It occurred very, shortly after twelve'.; "x" * * I recollect coming from the store and crossed the street obliquely towards McClure’s. I had got just about in the middle of the. street. ■I was aware of a wheelman coining behind me, and looking around just enough 'to not get run into myself'-^-1 happened to turn my head. I was aware of this wagon coming out of the alley and the wheelman coming behind me. 1 turned and looked just at the moment of collision-—-just before — I probably was aware 'that there might be a collision. * * * The man on the wheel was about. three or four feet from the west curb of Clinton when he went behind me. I was ¡somewhere between 10 and 15 feet Out from tile west curb when he went behind me. He was riding at about a moderate speed. I should say that he- was riding about five or six miles an hour. Q. Just describe what you saw ? A. Just as the driver saw that the man was going into him he started reining up his horse. Hr. Dickinson struck the horse’s head or the thill, as I understand since. He seemed to pitch up in the air and out to the west, and turned completely around. Q. Where was the horse and wagon when you first saw them? A. When I first had my attention on them directly was just before the collision. Q. How was the driver going? A. Why, he was reining up his horse with considerable strength I should say. The driver was pulling up his horse. He was just moving along pretty good speed then. Hy recollection is that he was trotting along. ¡Nearly in the middle of the street the horse was. * * * At the very moment of collision the back end of the wagon was just on the turn, coming out of the alley. At the time of the collision the wagon was curved around. I saw where Dickinson fell. His head was — as lie lay — towards the south, very nearly, on a line with the * * * south curb of Walton street. He was oh the. pavement not more than eight feet from the west curb of Clinton street. * * * In my opinion, the wheelman, when I first. saw the horse, was not ■ more than four feet at the most from the horse, either directly in front of the horse or a trifle to one- side; he was in front of the horse’s head, I know that. When I say either directly or a trifle to,one side, I have in mind the side towards Walton street, I think. That is towards the side I was going from. The wheelman was going directly south through the street at that time. He was, I believe, not turned one way or the other; was going directly south. I think the horse was nearly in the middle of the street at this time, and as near as I can remember, the bicycle rider was directly in front of the horse’s head. * * * I • didn’t notice whether or not any -horses were approaching the corner of Walton street at this time, but for some reason or other the bicycle rider had gone from a point three' to four feet from the west curb of Clinton street out to the middle of the street; and I don’t know whether or not that was to avoid á horse coining out of Walton street. * * * I recognize the point indicated'on this map marked with a small circle, stated by the engineer to be where that gas pipe comes up through the pavement, as about the place where Dickinson’s head struck after this collision, very close to that, So, after he came in contact with the! horse or thill, he slewed off diagonally, off to a southwesterly direction considerably. Towards Webber’s corner as they .call' it. He went anywhere from five to eight feet, I should think, in that' direction before his- head went to the pavement. * * * From that point where he went behind me, right there where I have described, about .opposite the north line Of the face of the building on Walton street .to the place of collision, he went from about four feet from the curb out to the middle of the street apparently. The rear of the Wagon was backed up. to the alleyway. Wagon still on a curve as it carne out of the' alley, partly; considerably. -I think possibly the rear end of the horse was still on a curve, too.”

Mary E. Slocum: “ I am employed at the E- 0. McClure Co. O.ur place of business-is at 329 South Clinton, just opposite Walton Street.. It is at the.corner of this alley and South Clinton street, north of the alley. * * * There, was. a fire just about two minutes of twelve, I think, which called- my attention to the window'; .* * * 'we' were all looking out, several of us. * -* * I saw the accident.; the collision between this wagon ■and the bicycle rider; but I didn’t see where he struck the wagon, what part of his head. It was on the opposite side of me the collision occurred, on the farther side from where I was standing. * * . * The accident happened as the driver was on the curve, turning up. Clinton .Street. * * - * • The horse was going * * * • about sevep miles an hour. I saw Mr. Dickinson on his wheel that day. When-1 first saw him he was about in front of Heal & Hyde’s, a little this side; on. the further, side of the street. H© was ten to eleven feet from the w.es.t curb of Clinton Street, I should say, I don’t-know positively; he was going south. He was holding back the .pedal when I saw him as he went .down Clinton street. He was going in this direction at the time of the collision! He was riding that wheel five or six miles an hour, I should presume. * * * He just went right straight ahead, struck the horse and wagon. I could not see that part of it because the horse was in my way; I was on the.other side.”

Frcmk Fewak : “ I saw the man on the wheel. I saw the wagon come in contact with the man. It struck him on the corner of Walton street and. Clinton street, by Webber’s corner, across the street. * * The man on the bicycle when I first saw him was about ten or fifteen feet from the horse. He was riding right along.”

All the witnesses who locate the place where the decedent lay on the pavement after he fell give the distance at about six feet from the west curb of Clinton street, apd in line with the south curb line of Walton street. The south curb line of Walton street extended across Clinton is nineteen and one-fourth feet north of the center of the alley and about twelve feet from the north corner of the alley. The length of the horse and wagon from the rear of the wagon to the head of the horse was shown to be eighteen feet' two inches. The witnesses place the body of Dickinson as he lay upon the pavement after the accident about two feet from the rear wheel of the wagon, so that there was a space of some eight feet between the horse and wagon and the west curb of Clinton street, within which Dickinson could have passed at the time the collision occurred.

There was no evidence given upon the trial that Dickinson made any effort to avoid the collision. All of the witnesses for the plaintiff— and they were the only witnesses beside the driver who observed the bicycle ri^er just as he approached the point of collision — say the bicycle rider was going directly south through the street, went right straight ahead. Miss ■ Slocum says: The man on the bicycle wasn’t doing anything to keep out of the way that I could see. He just kept right straight along.” The evidence now in the record points equally as much to negligence on the part of Dickinson as to that of the driver of the wagon.

The witnesses agree and the situation shows that the horse and wagon had not straightened out on Clinton street before the collision, so that the case did not furnish any occasion for the applicatian qf the law of the road, as it is termed, by which teams meeting, shall-seasonably turn to the right.

The court in "charging the jury stated as the law, of the road that “ a driver must keep on the right-hand side of the road. As he meets teams coming from- the other way he must turn to the right. That is- the law "of the road.” And further charged the jury as follows: “If you find- * * * that it was unreasonable and imprudent and negligent for him (the driver) to get onto, tlie West side of the center —- get the express wagon onto the west side of the center, arid this accident resulted because of the presence of the express, wagon on the wrong side of the road, then the negligence of the defendant is made out.” Again-: “How if this driver was negligent, if there was no reason for Ids being Over On the west side of the road) if you find he was over there on the west side, and there was: no fair reason for his being there, if you find that his presence there and progress towards the north "was an act of negligence, and this collision resulted because he was negligent, if you find that this man on the" wheel was free from negligence which contributed to the accident,' then you have cause of action made out; then your verdict must be for the plaintiff.”

"In view of; the charge as made, with, which" no fault was found by the defendant, the defendant’s counsel made the following requests: “ I ask your Honor to charge that the defendant was not negligent because the driver was across the center of the street, if they found he was across the center" of-the street, in case he conducted himself with reasonable care while there.”

The_court in reply, said 'in part,. “ the presumption is that the man who is on the left-hand side of the street is negligent for being there because" he is not in his right place when he meets somebody Coming the other way. In .the absence of any- explanation whatever, his being oil the wrong side" of the road, that, raises the presumption that he is there negligently. -How in this casé if you find that he was on the left-hand side of the street- going north it is-for the defendant to explain, .what necessity took him over on- the left-hand side of.the street.” ■

. The court' declined to charge in the language of the request and the defendant'expepted. , , „ '

. "We think this was reversible error. The defendant was entitled to have the charge made in the language of the request. If the horse was driven over to the west of the center of the street it was still a question whether while there the driver used reasonable care to avoid the collision. (Newman v. Ernst, 31 N. Y. St. Repr. 1; Quinn v. O’Keeffe, 9 App. Div. 68; opinion by Goodrich, P. J., in Savage v. Gerstner, 36 id. 220.)

The judgment should be reversed upon the ground that upon the evidence now in the record the plaintiff’s intestate was not shown to have been free from contributory negligence and also for error in the charge of the court.

All concurred; Spring, ‘Williams and Kruse, JJ., on secónd[ ground stated in opinion.

J udgment and order reversed and new trial ordered, with costs to the appellant to abide event. _ . '  