
    Andrew Anderson, Respondent, v. The Metropolitan Street Railway Co., Appellant.
    (Supreme Court, Appellate Term,
    December, 1899.)
    Negligence — Erroneous refusal to charge as to ringing the gong of a street car.
    A helper, sitting beside the driver of an ice wagon, but having no control of the horses, saw a rapidly-moving street car only thirty feet distant, as the wagon was approaching the street railroad crossing at a walk. He made no attempt to have the wagon stop, or its course altered, nor did he leave it. A collision resulted and injured him. The court refused to charge that if the helper saw the car, negligence of the street-ear company could not be predicated upon its alleged failure to ring the gong of the car. Held, that the refusal was erroneous.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court, eighth district, borough of Manhattan, after trial before a jury.
    Henry A. Robinson, for appellant.
    Charles P. Loeser, for respondent.
   MacLean, J.

In this action to recover for personal injuries, it appears that the plaintiff, a helper upon an ice wagon, and the driver by whose side he was sitting, both servants of a common master, were driving easterly through Twenty-sixth street, with fifty-two hundred weight of ice, drawn by two horses. When they came to Eighth avenue, each saw a car belonging to the defendant approaching rapidly from the south, thirty feet below the south crossing, the plaintiff testified; more than 100 feet south of that crossing, as the driver testified. The horses were on a slow walk and so continued, but while they were attempting to cross the north-bound track, the car struck the wagon, and the plaintiff, as he says, was thrown out and injured.

The plaintiff in no wise appearing to have control or management, the doctrine contended for by the appellant, that if the driver was negligent his negligence was to be imputed to the plaintiff so as to bar recovery does not apply. Hobson v. New York Condensed Milk Co., 25 App. Div. 111. See, also, Hoag v. N. Y. C. & H. R. R. R. Co., 111 N. Y. 199. The questions for the jury to determine were, was the plaintiff free from negligence and was the defendant at fault. As the plaintiff was bound to establish affirmatively his own freedom from fault, and as the situation was not one to paralyze him with fear or to provoke him to sudden mistake, he had to show affirmatively that he did what a reasonable and prudent man would have done under the circumstances to prevent the injury to himself of which he now complains. Yet when he saw himself slowly moving or being moved into a place of danger before a rapidly moving car, he did not slip from the wagon, nor even ask his fellow-servant to stop or alter his course, when at the westerly side of Eighth avenue he saw the car thirty feet below the crossing, nor when the horses were at the easterly track and he saw the swiftly coming car but ten feet below that crossing. It is, therefore, difficult to see a basis, and basis there had to be, for the jury to find that the plaintiff was free from fault.

The court was requested to charge: “ That if the jury find that both. the plaintiff and the defendant were negligent, their verdict must be for the defendant,” but the court said in reply: I have charged what the law is in relation to negligence and it is for the jury to determine how much negligence there was upon the part of the plaintiff or defendant,” and the defendant excepted. Such refusal was error and may not here be disregarded, for although the learned justice had said “ that if the plaintiff by his own negligence contributed to any injuries he may have sustained, he cannot recover,” he had omitted" to state the rule as requested by the defendant, and which the defendant was entitled to have charged substantially to the jury. The language of the refusal was misleading as introducing a possible apportionment of fault, which the law will not undertake. Again, the court was requested to charge: “ That if the plaintiff saw the car, the negligence of the defendant cannot be predicated on an alleged failure to ring the gong.” This the court refused, saying: “ You cannot tell what the plaintiff saw, as he was not driving the car,” and the defendant excepted. This too was error, because such warning was unnecessary in view of the fact, testified ■to by himself, that the plaintiff sáw the car approaching. Schulman v. Houston, etc., R. R. Co., 15 Misc. Rep. 30. The- judgment should be reversed.

Leventritt, J., taking no part.

Freedman, J.,

concurring on the ground that it was error to refuse to charge that if the plaintiff saw the car, the defendant’s negligence cannot be based upon the failure of the defendant to ring the gong.

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