
    Felix McCambley, Respondent, v. The Staten Island Midland Railroad Company, Appellant.
    
      Negligence — collision between a car and a 7wrse and'wagon standing between tTie trades — when a question is presented for the jury—die violation of a village . ordinance mill sustain a finding of negligence-.
    
    Where in an, action to recover damages from a railroad company, resulting from a collision between the plaintiff’s horse and wagon, left by him standing between the tracks of the defendant’s road, which were eighteen feet apart, and the ■ car of the defendant, it is contended by the plaintiff that at the time of the collision there was a clear view of the track, within six inches of which his wagon was standing, for more than one thousand feet, and that the car collided with the wagon without any effort on the part of the defendant to prevent the accident, while it is claimed by the defendant that the wagon was from three to five feet from the track when the car was from forty to fifty feet' away, and ■ that the plaintiff, grabbing .the horse by the bit, so frightened him that he backed the wagon 'into'the position in which it came into collision with the car, ■ a proper case is presented for the consideration of the jury.
    The violation of a municipal ordinance, while not negligence per se, as a matter of law, is competent evidence thereof, and sufficient to justify a jury in finding as a fact that its violation was negligence; and a charge to the jury, that the violation of the ordinance by the plaintiff was of itself insufficient to j ustify the jury in basing a finding of negligence thereon, is erroneous.
    Appeal by the defendant, The Staten Island Midland Railroad .Company, from an order of the Supreme Court, made at the Richmond Trial Term and entered in the office of the clerk of the county of Richmond on the 11th day of January, 1898, denying the defendant’s motion for a new trial made upon the minutes.
    
      Hareourt Bull, for the appellant.
    
      William J. Powers, for the respondent.
   Woodward, J.:

We are unable to agree with the learned counsel for the defendant that the case made by the plaintiff was insufficient to justify submitting the questions involved to the jury. This is an action for negligence; and while it may be argued with much of plausibility that the evidence of .the plaintiff in reference to the position of the wagon at the time of the collision was not inconsistent with the evidence of the defendant, which evidence tended to show an entire absence of negligence on the part of the defendant, we are of opinion that there was a sufficient conflict of evidence to justify the' trial court in submitting the case to the jury. . The plaintiff had left his horse standing between the tracks of the defendant. It was eighteen feet between the up track and the down track. The plaintiff contends that, at the time of the collision, with a clear view of the track for more than 1,000 feet, his wagon was standing within six inches of the track, and that,the car collided with the wagon without any effort to prevent the accident. The defendant, on the other hand, introduced evidence to show that the wagon was from three to five feet from the track when the car was forty to fifty feet away, and that the plaintiff, grabbing the horse by the bit, so frightened him that he backed the wagon into the position- in which it came into collision with the car. Without any reference to the exact language used by .the witnesses in describing tlie accident, these two theories of the occurrence were in evidence, and it was proper that the jury should pass upon them.

The fatal error in this case is the charge.Of the trial court, taken in connection with the refusal to charge as requested by the defendant. It was said:- “Now, as to the ordinancethe fact of plaintiff’s disregard or violation of the ordinance—if you find that he violated it, that of itself is not sufficient evidence of his negligence. Yon are to take the ordinance with all the evidence in this case, and from the whole evidence determine that question.” Counsel for defendant asked the court to charge that: “ In this case it has been proved that an ordinance of the village in which Broad étreet lies required the plaintiff not to leave his horse unattended in the street unless the horse was securely tied or fastened ; and it is undisputed that the plaintiff was acting in violation of this ordinance when the accident happened ; now, if you will find that this accident was to any extent due to this violation of this ordinance by the plaintiff, then your verdict must be for the defendant.” This was refused, except as charged, and the defendant excepted. Now, while the request of the defendant was erroneous in asking more than he was entitled to, still, it is equally clear that the charge of the court was erroneous in failing to give the defendant the full benefit of the ordinance; The effect of such a municipal ordinance is settled by the decision in Knupfle v. The Knickerbocker Ice Co. (84 N. Y. 488). Its violation is not negligence per se, as a matter of law, and conclusive evidence- on the question, but it is competent evidence, and sufficient to justify the jury in finding, as a fact, that its violation was negligence. The charge of the court, that the violation of the ordinance was insufficient for the jury to find negligence, was, therefore, error. Its violation should have been submitted to them as a fact. It was not disputed that the plaintiff had left the horse in the street without fastening. The -question was not whether the plaintiff was there in charge of his horse at the exact moment of collision, but whether the leaving of the horse in the highway without ■hitching, in violation of the ordinance, was' negligence which contributed to the accident. If it did, then the presence of the owner, who had run out and grabbed the horse by the bit, as is contended, did not operate to relieve him of the negligence which the jury might have found was involved in violating the ordinance. It was for the jury to say whether this accident would have occurred had the plaintiff acted within the rule laid down by the ordinances for the safety of those lawfully using the highways of the village, and because the charge of the trial court failed to place this question clearly before them, the order denying the motion for a new trial should be reversed and a new trial granted, costs to abide the event.

All concurred.

Order denying motion for new trial reversed and new trial granted, costs to abide the event.  