
    William H. Johnson, as Administrator, etc., of Andrew Johnson, Deceased, Respondent, v. Rochester Railway Company, Appellant.
    
      Negligence—collision ata street rail/road crossing between a wagon and a car — when the questions of negligence and of contributory .negligence are for thejjwry — a verdict for $1,000 not excessive.
    
    In an action to recover damages resulting from the death of the plaintiff’s'intestate, it appeared that the defendant operated a double-track electric street surface railroad on a city street running north and south, which was crossed at a sharp angle by a street running northwest and southeast; that about ten o’clock on the night of the accident, while the plaintiff’s intestate was driving south-easterly along the center of the intersecting street across the defendant’s car tracks, a car coming from the south on the easterly track struck the hind wheel of the wagon, overturning it and causing the plaintiff’s intestate to sustain injuries which resulted in his death.
    Evidence was given tending to show that when the horse, which was traveling ' at a good gait, was within sixteen feet of the westerly track the car was' about two hundred feet away; that when it had reached a point between the two tracks, the car was from seventy-five to one hundred feet away; that it was moving ata very high rate of speed and that the speed was not slackened until after it struck the wagon, There was an electric light- at the intersection of the two streets and the car and the wagon were in plain sight of the plaintiff’s intestate and the motorman respectively, for a distance of more than two hundred feet,
    The motorman testified that he made, no effort to stop the car until the horse was in front of it and not more than fifteen feet away; that he then tried to stop the car and applied the reverse, but that for some reason the power did not work and the collision resulted; that, even if the appliance for stopping the car had worked, he could not have stopped it within a distance of fifteen feet.
    
      Held, that the questions, whether the defendant was guilty of negligence and whether the plaintiff’s intestate was free from contributory negligence, were properly submitted to the jury and that a verdict in favor of the plaintiff was justified by the evidence;
    That a verdict of §1,000 in favor of the plaintiff could not be said to be excessive where the evidence tended to show that the deceased was twenty-seven years of age, strong and healthy, and at the time of his death was engaged in the saloon business, and devoted his earnings or a portion of them to the support of his father and his children, although it appeared that the deceased was- not a man of good habits and had not been successful in accumulating property.
    Appeal by the defendant, the Rochester 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 Monroe on the 10th day of July, 1900, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 13th day of June, 1900, denying the defendant’s motion for a new trial made upon the minutes.
    The action was commenced on the 14th day of August, 1899, to recover damages sustained by the next of kin of Andrew Johnson, a brother of the plaintiff, on account of his death, which occurred on the 27th day of June, 1899, and alleged to have been caused by the negligence of the defendant.
    
      Charles J. Bissell, for the appellant.
    
      Charles Boe, for the respondent.
   McLennan, J.:

On the 25th day of June, 1899, the defendant was engaged in operating an electric double-track street surface railroad in the center of Clinton street, which was forty-four feet wide between the curbs, in the city of Rochester, N. Y. Clinton street extends substantially north and south, and is crossed at a sharp angle by Franklin street, which is thirty-eight feet wide between the curbs.

At about ten-thirty o’clock at night of the day in question the deceased was driving a single horse attached to a light lumber wagon, going southeast at a sharp trot along the center of Franklin street and across Clinton street. He was sitting on a spring seat, on the right-hand side, and a Mr. Hanify was sitting with him on the left-hand side. A Mr. Kane sat between them facing the back part of the wagon and holding a bicycle between his knees. A car on defendant’s road in Clinton street came from the south on the easterly track and collided at the intersection of the two streets with the wagon being driven by the deceased, striking the hind wheel, overturning the wagon and throwing the deceased out, and he sustained injuries which it is claimed caused his death, which occurred two days afterward.

There was an electric light at the intersection of the two streets, and as the deceased approached the crossing the defendant’s car was-in plain sight for a distance of more than 200 feet. The deceased and the vehicle in which he was riding were plainly visible to the motorman for a like distance.

Hanify, who was called ás a witness on behalf of the plaintiff, testified that when the horse was between the crosswalk' and the first track; a distance of'about 16 feet, the car which was approaching the " crossing was at Pleasant street, about 200 feet away'; that the horse at that time was moving along at a good gait, and'that when the horse got to a point between the two tracks he (Hanify) told the deceased to hurry up, and thereupon the deceased struck the horse with the lines and he quickened his pace. The witness -testified that the car was moving rapidly and that its speed was not slackened in the least as it approached the crossing, or until after it had struck the wagon. As we have seen, when' the collision occurred the deceased had very nearly made the crossing, only the hind wheel of the wagon having come in contact with the car.

Kane, another witness called by the plaintiff, testified that when the-horse was between the-two-tracks the car was from 15 tó 100 feet distant from the crossing; that it was moving at a very high rate of speed, and that the speed was not slackened in the least as it approached the crossing-.

From the evidence it clearly appears that if the mdtórman had taken means to stop the car when seventy-five to one hundred feet' froth the crossing, and when the horse was between the tracks and proceeding-to cross, he could have done so and thus avoided the-accident. The motorman testified that he. made no effort to stop the: car until the horse was ih front Of it and not more than fifteen feet away'; that he then tried to stop and applied the reverse but that for some reason the power did not work and the collision resulted ; although he testified that if the appliances for stopping-the car'had worked he could;.not have stopped within a distance of' fifteen feet, in view of the load which was upon the car.

The witnesses Hanify and Kane testify that the deceased, in attempting to make the crossing, followed substantially the center line-Of Franklin street until the wagon was struck, thus crossing defendants tracks at a sharp angle. ' The evidence of the defendant’s Witnesses is to the effect that as the deceased approached the tracks he turned the horse to the left so as to- cross the tracks at substantially a right angle, and that if he had- not thus changed his course he would have passed to the rear of the car, and the collision would not have occurred; and this is the' excuse given by - the motorman for not having made an attempt tó stop the car .sooner than he did.

The evidence, is conflicting as to the rate of speed the car was moving at the time of the collision and immediately prior thereto. Plaintiff’s witnesses testified that it was going very fast; at a very high rate of speed; while the motorman and other witnesses called by the defendant asserted that it was not going faster than four miles an hour. Whatever may have been the rate of speed, it is apparent that the car was not under control as it approched the crossing. From this state of facts- can it be said, as matter of law1, that the defendant was free from negligence which caused the accident, or that the deceased was guilty of contributory negligence ?

The questions suggested by the facts are: Was the deceased¡ when .at a.point between defendant’s first track and the curb, and when he observed the car approaching at Pleasant street, 200 feet distant, reasonably justified in assuming that he could cross in safety before such car reached the crossing ? And even when the horse, which the deceased was driving had reached a point between defendant’s two tracks,, and the car was 75 to 100 feet away, was he justified in believing that he could make the crossing in safety? Those questions were answered in the affirmative by the jury, and if such answers were justified by the evidence, the deceased was not chargeable with contributory negligence.

Again, assuming that the deceased was driving at a good trot, and his horse had just reached the "first track and was proceeding to cross when the car was 200 feet away, going at a high rate of speed, was it negligence on the part of the motorman to continue to proceed toward the crossing without attempting to slacken his speed or have his car under control ?

When the horse which the decased was driving was at appoint between the two tracks, and just going onto the track upon whicb the car was moving, still trotting at a good gait, the car being then 75 to 100 feet away, was the defendant’s employee guilty of neglilence in not slackening the speed of the car and bringing it under control ?

Those questions were also answered favorably to the plaintiff by the jury, and we think, under the authorities, its determination must bo. regarded as final and conclusive.

■ The rule defining the duty which a street surface railroad company owes to a traveler in the movement of its cars at a street crossing is correctly stated in the head nóte in Hergert v. Union Railway Co. (25 App. Div. 218), as follows: “ A motorman' in the management of an electric car has, at a street crossing, no right superior to that of the driver of a wagon which is crossing the street.

Where such driver, when the car is approaching at a distance of fi'om 150 to 175 feet, proceeds to cross the track, driving his horses at a walk, and the motorman, although his view of the track is unobstructed, makes no effort to check the speed of his car until it is too late to prevent its collision with the wagon, the motorman is guilty of negligence.”

In the case at bar it is perfectly evident that if the motorman had observed and given attention when he was at Pleasant street, 200 feet away, he would.have seen that the deceased was about to cross the track upon which the car was moving, and that the deceased would-reach the point of crossing in advance of the car; and when at a point 75 to 100 feet from the crossing it should have been evident to him that ■ a collision must result unless the speed of the car was slackened, and it was brought under control. The jury were amply justified in concluding, under the circumstances, that the motorman was .guilty of negligence in permitting the car to proceed at such a high rate of speed, and without making any attempt to control it, upon the assumption that the deceased would pass to the rear of the car instead of in front of it.

In' O'Neil v. Dry Dock, E. B. & B. R. R. Co. (129 N. Y. 125), Judge Eabl, in writing the opinion of the court, after discussing the rights of a street surface railroad, and the use of its tracks in streets between crossings, said: “ But a railway crossing a street stands upon a different footing. The car has the right to cross and must cross the street, and the vehicle has the right to cross and-must cross the railroad track. Neither has a superior right to the other.. The right of each must be exercised with due regard to the right of the other, and the right of each must be exercised in a reasonable and careful manner, so as not unreasonably toi abridge or interfere with the right of the other.”

These cases furnish ample authority for the proposition that, under the facts disclosed by the evidence in this case, the question of defendant’s negligence was at least for the jury.

The case of Buhrens v. Dry Dock, E. B. & B. R. R. Co. (53 Hun, 511) is an authority for the proposition that the question of the negligence of the deceased, under the facts of this case, was also'for the jury. In that case the court said : Assuming that the plaintiff saw the car approaching very fast, still there was nothing to indicate to him that it was not under control of the driver, and he had a right to believe that the latter would exercise proper care. The plaintiff supposed he would clear the car, and although subsequent events proved that he erred in this conclusion, a mere error of judgment was not necessarily negligence, when the proof shows that had the car been properly managed, as the plaintiff had a right to assume it would be, he would have been enabled to cross in safety.” To the same effect is Kennedy v. Third Avenue R. R. Co. (31 App. Div. 30).

These cases, we think, are not in conflict with Belton v. Baxter (54 N. Y. 245); Motel v. Sixth Avenue R. R. Co. (99 id. 632); McClain v. Brooklyn City R. R. Co. (116 id. 459) and other eases cited by appellant’s counsel.

It undoubtedly is the rule, established both by authority and common sense, that it is negligence for a person to attempt to cross a public thoroughfare ahead of vehicles of any kind, upon a nice calculation of injury if such attempt be made, and in the cases cited by appellant’s counsel the circumstances were such as to justify the conclusion that the pedestrians and travelers in those cases made such nice calculations of injury in making the attempted crossings, that, -as matter of law, they were guilty of contributory negligence.

The facts of those cases are clearly distinguishable from the facts of the case at bar. Whether or not the deceased was guilty of negligence which contributed to the injury, we think was clearly a question for the jury. Whether or not the injury which the deceased received was the cause of his death was also a question of fact for the jury.

Under the evidence it cannot be said that the verdict of the jury was excessive. The deceased was twenty-seven years of age, and, according to the testimony of his brother, he was strong and healthy; at the time of his death was engaged in the saloon business and devoted his earnings, or a portion of them, to the support of his father and his children. The evidence quite clearly indicates that, the deceased was not a man of good habits, and had not been successful in accumulating property, and how useful he might have proved to his family had he lived is purely problematical; but the jury heard his character, habits and prospects described by the witnesses, and we think $1,000, their estimate of the value of Ms life to Ms next of kin, cannot be said to be excessive.

Attention has been called to certain exceptions taken to the charge of the learned trial court and to refusals to charge as requested. We are of the opinion that such exceptions do not present such error as to require a reversal of the judgment.

It follows that the judgment and order appealed from should be affirméd, with costs.

Judgment and order affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  