
    Mary Kelly, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Injury to a passenger on a street cm punctured by the shaft of a wagon — the railroad company is not obliged to use the “ highest degree of care.”
    
    In an action to recover damages for personal injuries sustained by the plaintiff while a passenger on one of the defendant’s street cars, in consequence of the shaft of an express wagon puncturing the side of the car while it was in motion, it is error for the court to charge the jury that it was the duty of the defendant to use “ the highest degree of care ” for the safety of the plaintiff, and the defendant is entitled to have the court charge that it was only obliged to use a “high degree of care.”
    Hibschbbrg and Hooker, J J., dissented.
    Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 2d day of February, 1903, upon the verdict of a jury for $800, and also from an order entered in said clerk’s office on the 11th day of February, 1903, denying the defendant’s motion for a new trial made upon the minutes.
    
      Bayard H. Ames [F. A. Gaynor with him on the brief], for the appellant.
    
      Joseph Fitch, for the respondent.
   Goodrich, P. J.:

The plaintiff has recovered a verdict against the defendant for personal injuries occasioned to her while she was a passenger on its road. She was seated on the north side of a car running west through Thirty-fourth street, Manhattan, and crossing Fifth avenue,, when the shaft of an express wagon going south along Fifth avenue punctured the side of the car and injured her. The only question which it is necessary to consider is the charge of the learned court. In the principal charge the court said: “Now, while the railroad company are not insurers or guarantors of the safety of passengers upon their cars, it is their recognized duty to use the highest degree of care for the safety of persons who become passengers upon their cars.” Defendant’s counsel specifically excepted “ to that portion of your Honor’s charge wherein you say that the defendant company was bound to exercise the highest degree of care to insure the Safety of the plaintiff. . The Court: Yes. Defendant’s Counsel: I ask your Honor to modify that part of the charge and to charge the jury that they were only required to exercise a, high degree of care. The Court declines so to charge and defendant excepts.”

I think the refusal was error, under Stierle v. Union Ry. Co. (156 N. Y. 70, 684). We held this doctrine in Regensburg v. Nassau Elec. R. R. Co. (58 App. Div. 566) and in Conway v. Brooklyn Heights R. R. Co. (82 id. 516). There are circumstances where the rule stated by the court may be applicable, but it is not a rule of universal application and certainly not in the case at bar.

The judgment and order should be reversed.

Woodward and Jeeks, JJ., concurred; Hirschberg, J., dissented in memorandum, with whom Hooker, J., concurred.

Hirsohberg, J. (dissenting):

Independent of the question whether or not the charge of the learned trial justice, to the effect that the defendant was bound to exercise the highest degree of care, is correct, I am of opinion that the ultimate charge in response to the two final requests made by the defendant’s counsel was equivalent to instructing the jury that the measure of duty on the part of the defendant, was limited to the exercise of the utmost care possible under the circumstances of the case, and that, therefore, there was no error.

Hooker, J., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  