
    FRANCIS W. WHITTAKER, Respondent, v. THE NEW YORK & HARLEM R. R. CO., Appellant.
    
      Negligence case.—Evidence, what not merely negative—City ordinance, admissibility of.—Light, necessity of—Charge, construction of.—Requests to charge, what sufficient compliance with.
    
    The evidence of witnesses, who testified that they were looking toward the place where, if a light had been where a witness swore it was, there was room to infer they would have seen it, to the effect that they did not see a light there, is more than mere negative testimony, although the subject of light specifically was not in their minds at the time, but they were looking to see all that could be seen.
    Consequently, a request to charge in the case at bar, that as against positive affirmative evidence that there was a light, the evidence of witnesses whose attention was not directed to the facts, that they did not see one, ought not to prevail, was held to have been properly refused, as such a charge would have misled the jury.
    An ordinance requiring certain precautions to be taken, is receivable in evidence, with proof that the precautions were not taken, to go to the jury with the other facts, for their consideration in passing on the question of defendant’s negligence.
    Where the evidence is such that the jury would be at liberty to find that if a -ight had been shining, the injured man would have been warned and been enabled to escape, the question of its absence or presence is very material.
    The judge charged that there was no evidence that one driver was insufficient to control the car, but it is a question for the jury to determine under the circumstance whether it was negligence. Held, that the judge meant, and must have been so understood, that there was no testimony, specifically and directly, that one driver was insufficient, but that there was circumstantial evidence on that point upon which the jury should pass; and there being, in fact, such circumstantial evidence, the charge ■was held correct.
    The accident occurred in the Bowery, where there are four tracks, two belonging to tlie defendant, and two to the Third Avenue Railroad. The defendant’s counsel requested the court to charge that it was not enough for the plaintiff to have looked up and down the Third avenue track; he knew of the Fourth avenue track, and was bound to look up and down that track also. The court charged, “ Of course, a man, before crossing the street, is bound to look up and down the street, and to take all the precautions that a prudent person would take under like circumstances. If he failed to do so then he is guilty of negligence, and if you find he did not exercise ordinary care and caution he cannot recover.” Defendant’s counsel then requested the court to charge, that if the plaintiff failed to establish by proof that he looked up and down the Fourth avenue track, he is chargeable with negligence, if by so looking he could have seen the horses and car approaching. To which request the court said, “I make the same remarks in regard to that, that I did in regard to the former request.” Defendant’s counsel excepted severally to the refusal of the court to charge these requests in the language of the requests, and also excepted to the modifications of such requests in each case. Held, that such exceptions were untenable.
    
      Decided February 2, 1886.
    Before Sedgwick, Ch. J., and O’Gorman, J.
    Appeal by defendant, from judgment entered on the verdict of a jury.
    The action was for damages, from negligence of defendant’s servants.
    The facts sufficiently appear in the opinion and head-notes.
    
      Anderson & Howland, attorneys, and Henry H.. Anderson, of counsel for appellant,
    on the questions discussed by the court, argued :—I. An effort was made at the trial to create the impression in the minds of the jurors, that there was not, or perhaps might not have been a light upon defendant’s car, as required by a city ordinance. The testimony offered on the part of the 'plaintiff on this point is absolutely worthless. His witnesses, with a disposition to help the plaintiff out as much as possible, say that they did not see a light, and hence, conclude that there was none; they admit that their attention was not called to the matter at the time and that they made no examination for a light.- This was nothing more than a present impression upon the witnesses’ minds, referring back to an event more than three years past. It was not proof to submit to the consideration of the jury. So ordinary a detail as a light on the car would not make any impression upon the mind of a spectator at such a time, unless his attention should be called to it in some way. The presumption is that the light was there, it being the ordinary course of things and also required by law, until some positive affirmative evidence is produced that it was not there. The objection taken by defendant’s counsel, to the admission of this negative evidence should have been sustained.
    II. The driver testifies as positively and explicitly as possible that the hght was on the car; that it was put on when he started from the depot down-town, and that he handed it off, still burning brightly, when he reached the depot up-town, after Mr. Whittaker’s mishap.
    The defendant’s counsel requested the trial judge to charge the jury that “as against positive affirmative evidence that a hght was placed and burning upon the car, the evidence of witnesses, whose attention was not directed to the fact, that they did not see any hght, ought not to prevail.” The judge refused so to charge and left the question to the jury on the evidence. This was error and was material (McKeever v. N. Y. C. & H. R. R. Co., 88 N. Y. 661; Culhane v. N. Y. C. & H. R. R. Co., 60 N. Y. 133).
    III. The admission of the ordinance, to which defendant’s counsel excepted, on the ground that it was irrelevant and incompetent, and that under the evidence in the case it was not pertinent, was error, and defendant’s objection should have been sustained. The mere absence of a hght would not charge the defendant with neghgence, nor reheve the plaintiff from the necessity óf watchfulness under the circumstances. There is not a particle of evidence in the case, nor was any attempt made, to show that the presence or absence of a hght did make, or could have made any difference whatever. But the mere raising of the question was calculated to create a prejudice in the minds of the jury, which could not but be further emphasized by the reading of the ordinance in evidence. Its effect would be to befog the jurors as to the real issues in the case, and to indicate to them that, in case they failed to see any other particular in which the defendant was shown to be neghgent, they were at liberty, at least, to find negligence from the possible absence of this light.
    IV. Defendant’s counsel asked the court to charge that there was no evidence in the case that one driver was insufficient to control the car. The Court : That I charge, but it is a question for you to determine under the circumstances whether it was not negligence. Defendant’s counsel excepted to the qualification. The qualification was manifest error. Does it not contain, in fact, a flat contradiction ? For, if there was no evidence in the case that one driver was insufficient to control the car, it follows that there was no evidence in the case that the defendant was negligent in providing only one man to drive the car ; and if there was no evidence in the case that the defendant was negligent in providing only one man to drive the car, then there was no evidence (circumstances) in the case from which the jury could deduce negligence in that regard, and they were not at liberty to do so. The expression, “under the circumstances,” means under the circumstances in this case, and implies that there were circumstances (evidence) in this case from which negligence in having but one driver could be inferred. The province of the jury is to find conclusions only from the facts before it. If the request was in accordance with the fact, the defendant was entitled to have it charged with its full force and effect. The jury were not at liberty to find that under any and all circumstances without special reference to the facts in this case, it is negligence to provide only one driver. The fact is that one driver is sufficient, and there is no proof, nor attempt to prove, that one was not enough in this case. The point is material to the defendant, because the court, while seeming to grant the request, ruined its force, and gave the jury to understand in the same breath that, faffing all other grounds, they might find negligence on the part of the defendant, from the fact that it provided but one man for the car (Gupper v. N. Y. C., 40 N. Y. 
      34, 41 Semel v. N. Y., N. H. & H. R. R. Co., 9 Daly, 321).
    Y. The defendant was entitled to have its requests charged in the language of the requests or else in substance. The modification of the requests made by the court, destroyed their force, and was equivalent to a refusal to charge as requested. This was error, and bore materially on the defendant’s case.
    
      Chaunccy S. Truax, attorney and of counsel for respondent,
    on the questions discussed by the court, argued I. The ordinance was admissible in evidence (Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488; McGrath v. N. Y. C. & H. R. R. Co., 63 Ib. 522 ; Beisegel v. N. Y. Cent. R. R. Co., 14 Abb. Pr. N. S. 29; Rehberg v. Mayor, &c., 91 N. Y. 137).
    II. As to the charge in relation to there being but one driver. Had the court refused to charge defendant’s request, it would not have been error. For (a.) It appears from the testimony of Mr. Schwenck, that when he asked the driver “why he didn’t stop,” he replied, “the track was so slippery.” (6.) It is a fact, that when struck by the right front horse, plaintiff was standing about three feet to the eastward of the N. Y. & H. car track. The front team must therefore have been traveling, not on the company’s track, but, through the inability of the driver to control the four horses, to the eastward of it. (c.) As to the charge as made, the mere fact, that there was only one man on the freight car, who had to perform the double duty of driving four horses and controlling the car, was a circumstance to be taken into consideration by the jury, in determining the question of defendant’s negligence (Johnson v. Hudson R. R. R. Co., 20 N. Y. 65 ; McGrath v. N. Y. C. & H. R. R. R. Co., 63 Ib. 522).
    HI. The requests as to looking up and down were charged in substance. This was sufficient. The court is not bound to charge the jury in the precise language of a request (Abbott v. People N. Y. State, 86 N. Y. 460, 471; Allen v. Stout, 51 Ib. 668). The defendant’s request as to the evidence on the question as to there being a light, being based upon a misapprehension of the testimony of plaintiff’s witnesses as to the absence of a light, was an improper one. Such was not the evidence.
   By the Court.

Sedgwick, Ch. J.

On the trial, defendant’s counsel asked the court to charge that “as against positive affirmative • evidence that a light was placed and burning upon the cars, the evidence of witnesses, whose attention was not directed to the fact, that they did not see any light, ought not to prevail.” This, if charged, would have misled the jury. The jurors would have thought that there were witnesses in the case, whose attention, by the testimony, had not been called to the existence or non-existence of the light. Each of the witnesses intended to be referred to by the request, had given some attention to the facts, that the jury had the power to say, sufficiently showed that if the light had been there the witness would have seen it. The witnesses swore, in substance, that their looking was toward the place, where, if the light had been where the driver swore it was, there was room to infer the witnesses would have perceived it. They were not at the time looking, for the purpose of ascertaining if there were a light, nor did they havé in their minds the subject of a light specifically, but they were looking to see all that could be seen. Their testimony was more than the mere negative testimony that they, did not see a light. The true question was, whether their evidence was true, and whether the jury were or were not convinced that if there had been a light, they would have noticed it (Culhane v. N. Y. Central & H. R. R. Co., 60 N. Y. 137 ; McKeever v. N. Y. Central & H. R. R. 88 N. Y. 667).

The counsel for defendant objected to the admission as evidence of an ordinance of the city, that every railroad company shall provide each freight car, etc., with a good light or lantern, “which shall be placed in a conspicuous position on the front of said car to warn persons of its approach,” etc. The ground of the objection was, that the mere absence of a light would not charge the defendant with negligence. It was, however, admissible as one fact, which should go to the jury with the other facts, all of which the jury were to consider in passing upon the issue as to defendant’s negligence. The charge of the court accorded with the case of Houghkirk v. President, etc. D. & H. C. (92 N. Y. 221). In that, the opinion was, that “ the fact maybe proven as one of the circumstances, under which the train was moved and by which the degree of care requisite in its handling and running may be affected ; so that the question never is, whether there should have been a flagman, or one ought to have been stationed at the crossing, but whether in view of its presence or absence, the train was moved with prudence or negligence.” It is argued that there was no evidence to show that the presence or absence of a light did or could have made any difference whatever. This does not consider that the plaintiff testified that, as he crossed the street, he looked in the direction from which the car was actually coming, for the purpose of ascertaining, as the jury may find, if there was a danger against which he should guard. The jury were at liberty to find that if a light had been shining from the car, he would have been warned.

The court was asked to charge that there is no evidence in the case, that one driver was insufficient to control the cars. The court said that is so charged, “but it is a question for you to determine, under the circumstances, whether it was not negligence.” There was an exception to the matter added by the court. The judge evidently meant to charge, and must have been so understood, that there was no testimony specifically and directly, that one driver was insufficient, but that there was circumstantial evidence on the point upon which the jury should pass. The circumstances, as the jury might find them, were, that as the plaintiff was standing in a place of safety outside of the defendant’s tracks, the driver of the car negligently drove his four horses, so that the leading horses went off the track, struck the plaintiff, and knocked him down; that at this point, the driver saw him and tried to stop the horses, by pulling them back, and the car by turning the brake; that if he had not been alone, and there had been another with him, to take the horses or the brake, the car might have been stopped before its wheels turned upon the arm of the plaintiff. The charge was not erroneous.

The court was asked to charge that if the plaintiff has failed to establish, by proof, that he looked up and down the Fourth avenue track, he is chargeable with negligence, if by so looking he could have seen the horses and car approaching. The court said, that in regard to that, he made the same remark, that he had made as to the preceding request. That was, “of course a man before crossing the street is bound to look up and down the street, and to take all the precautions that a prudent person would take under the circumstances. If he failed to do so, then he is guilty of negligence, and if you find he did not exercise ordinary care and caution, he cannot recover.” It is argued that this remark did not embrace all that there was noted in the request. It seems to me that the court, in using the words “crossing the street is bound to look up and down the street,” must have been understood to refer to looking up and down the Fourth avenue track.

My opinion is, that there was sufficient testimony as to plaintiff’s freedom from contributory negligence, to make a case for the jury on that point.

Judgment affirmed, with costs.

O’Gorman, J., concurred.  