
    (76 App. Div. 1.)
    MUESSMAN v. METROPOLITAN ST. RY. CO.
    (Supreme Court, Appellate Division, First Department.
    November 14, 1902.)
    1. Street Railways — Negligence—Injury at Crossing — Evidence—Instructions.
    In an action against a street railway company for personal injuries caused by being struck by defendant’s car at a crossing, plaintiff testified that he was in the middle of the track when struck. Two of his witnesses testified that he was between the first rail and the middle of the track, and another witness that the front of the car was about 7% feet from the crossing when plaintiff was in the gutter, and that plaintiff was just stepping on the track when he was struck. The court had charged that if the testimony of plaintiff’s witnesses was true, and the car was going so fast that the motorman could not control it until plaintiff was struck, plaintiff was entitled to recover. Held that, as the jury might have found from the testimony that plaintiff stepped on the track so closely in front of the' car that it would have been impossible for the motorman to have stopped in time, the refusal of a charge that, if plaintiff was struck as soon as he stepped on the track, his negligence contributed to his injury, was error.
    Appeal from trial term, New York county.
    Action by Vincent Muessman, by his guardian ad litem, against the Metropolitan Street Railway Company. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals.
    Reversed.
    Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, O’BRIEN, and INGRAHAM, JJ.
    
      Charles F. Brown, for appellant.
    J. M. Birnbaum, for respondent.
   INGRAHAM, J.

The plaintiff in this action was run over by one of the defendant’s cars, sustaining injuries which resulted in the amputation of both legs, and for that injury has been awarded a verdict of $30,000. As we think there is an exception that requires us to reverse this judgment, it is not necessary to determine whether, upon all the evidence, the finding that the defendant was guilty of negligence and that the plaintiff was free from contributory negligence was sustained. There was presented upon the trial a sharp conflict between the witnesses as to the position of the car at the time the plaintiff started to cross the track. There was evidence that, as the plaintiff was crossing this track, the car was proceeding around the curve at Tenth avenue and Fifty-Ninth street, the speed was suddenly increased, and that the plaintiff was struck before he could get out of its way. The plaintiff testified that he saw the car before it attempted to round this curve, and that it then had the appearance of being at a standstill. Other witnesses described the car before rounaing the curve as proceeding very slowly, and that the speed/of the car was suddenly increased while rounding the curve. If the car was on Tenth avenue, below the curve, when the boy started to cross the track, and then suddenly increased its speed, and ran over him before he could get across, the motorman making no effort to stop the car or avoid the injury, there certainly would be evidence of the defendant’s negligence. On the other hand, the defendant presented evidence which tended to show that this boy, playing in the street, started to run across the track as the car was rounding the curve, and either ran into the car, or was struck as he got upon the track, under conditions which, if believed, would exonerate the defendant from fiability.

The exception which requires us to reverse the judgment wlo taken to the refusal of the court to charge a request made by the defendant. The court had charged the jury:

“If you determine, then, that the testimony of the plaintiff’s witnesses is true, — that the plaintiff, using reasonable care for a boy of his years, attempted to cross this crosswalk at Fifty-Ninth street and Tenth avenue; that the defendant’s motorman caused its car to go so fast at that point that he could not control it until the car went over the boy; and that his parents were not negligent in allowing him out in the daytime, unaccompanied,. — or if you find that he was in law able to take care of himself, and that no act of his, considering his age and intelligence, contributed to the happening of the accident, in that event your verdict will be for the plaintiff. For I charge you, gentlemen, that the failure of the defendant’s motorman to have the ear under control at the crosswalk would, unexplained, constitute negligence on the part of the defendant.”

This charge was not excepted to. If it had been, it would have been clearly error, as it is not the rule that proof of the motorman’s failure to control the car at a crosswalk as a matter of law entitled the plaintiff to a'verdict. The jury must find the defendant or its agents guilty of negligence; and assuming that these facts, if proved, would be sufficient to sustain a finding of negligence, the court was not justified in instructing the jury that, if such facts were proved, the plaintiff was as a matter of law entitled to a verdict. There was, however, no exception to this charge, and we are not, therefore, justified in reversing the judgment upon that ground.

After this charge was delivered, counsel for the defendant asked the court to charge: “If the plaintiff was struck by the car as soon as he stepped upon the track, his negligence contributed to his injury, and he cannot recover,” — which was declined, and to which the defendant excepted. I think that, in view of the charge as delivered, the defendant was entitled to have the jury so instructed. Assuming that the general statement of the plaintiff’s witnesses was correct as to the position of the car, just prior to the accident, when the plaintiff started to cross the street, still the jury could have found from the testimony that, as this plaintiff stepped on the track, he was just in front of the car, and in such a position that it would have been impossible for the motorman to stop it before striking the plaintiff. The plaintiff testified that he was in the middle of the track, between the two rails, when he was struck; and at least two of his witnesses testified that he was between the first rail and the slot in the middle of the track. Mrs. Wright, a witness for plaintiff, testified that the front of the car was about 7 feet 6 inches from the crosswalk, coming very fast, when the plaintiff was in the gutter, and that the plaintiff was just stepping on the track when he was struck; and a witness for the defendant testified that plaintiff ran in front of the car as it came around the curve. If that was the situation, the plaintiff certainly would not have been entitled to recover, as the negligence to sustain a recovery in this case must be based upon the fact that the motorman failed to stop the car when the plaintiff was either upon the track or in such a position that, if the motorman had been attending to his duty, he must have noticed that the plaintiff intended to cross. But, if the plaintiff did start to cross when the car was close to him, so close that the motorman could not stop the car before striking him, there was then no evidence to “justify a verdict. Nowhere in the charge is the attention of the jury called to this condition, and yet the jury might from this evidence have found that the plaintiff stepped upon the track immediately in front of the car under such circumstances that the motorman could not stop the car before striking him. I think, therefore, that this exception requires us to order a new trial.

The judgment and order are reversed, and a new trial is ordered, with costs to the appellant to abide the event..

VAN BRUNT, P. J., concurs. PATTERSON and O’BRIEN, JJ., concur in result, for the reason stated by HATCH, J.

HATCH, J.

I am of opinion that the evidence in this case presented a question of fact for determination by the jury, and that the verdict finds support in the evidence. I concur in the reversal, however, for the error in the charge as pointed out by Mr. Justice IN-GRAHAM.  