
    Annie Hook, as Administratrix, etc., of Julius Hook, Deceased, Respondent, v. New York and Queens County Railway Company, Appellant.
    
      Negligence—charge as to the duty of the plaintiff when put in a situation of ‘ ‘ unexpected peril ” — if both plaintiff and defendant a/re so situated the defendant is not entitled to the direction of a verdict.
    
    In an action to recover damages resulting from the death of the plaintiff's intesstate, who was run over at a crosswalk by one of the defendant’s east-bound trolley cars just after he had passed in front of a west-bound car, the speed of which had been slackened in order to allow him to cross, the plaintiff’s counsel asked the court to charge that if the deceased “were suddenly placed in a situation of unexpected peril, the jury are at liberty to say that he need not exercise the same nice discrimination as if he were not in the peril.” To this request the court responded, “ Certainly,” whereupon the defendant’s counsel requested the judge to charge “ that if they arrive at the conclusion that both of them were in that position they must find for the defendant.” In answer to this request the court said : “ No, they must examine the conduct of these two men upon the principles I have given them, but always with reference to the situation in which they found themselves.”
    
      Held, that no error prejudicial to the defendant had been committed.
    Goodrich, P. J., dissented on the ground that the damages awarded were excessive.
    Appeal by the defendant, the New York and Queens County 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 Kings on the 22d day of June, 1900, upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 30th day of June, 1900, denying the defendant’s motion for a new trial made upon the minutes.
    
      William E. Stewart, for the appellant.
    
      James C. Cropsey [F. W. Catlin, with him on the brief], for the respondent.
   Willard Bartlett, J.:

This is a negligence suit, brought by the administratrix of a contractor. He. was .thirty-three years of age, left a widow and four infant children, and had contributed twenty dollars a week for the food and clothing of his family, in addition to the rent. He was run over by an east-bound trolley car of the defendant just after he had passed in front of a west-bound car, the speed of which was slackened in order to allow him to cross. The proof in behalf of the plaintiff justified the jury in finding that the accident happened on the crosswalk, although there was evidence in behalf of the defendant to the effect that it occurred at some distance from the crosswalk.

The record discloses no ground for interfering with the verdict. Negligence may well be predicated of the speed at which the plaintiff’s testimony shows the car was run as it approached the crosswalk where the deceased is said to have been struck. The question of contributory negligence was clearly one for the jury, under all the recent authorities, and the verdict cannot be regarded as so clearly excessive as to warrant reversal on that grotind.

I have carefully examined all of the exceptions and find none which is tenable. Only one seems to require special mention. The plaintiff asked the court to charge that if the deceased “ were suddenly placed in a situation of unexpected peril, the jury are at liberty to say that he need not exercise the same nice discrimination as if he were not in the peril.” To this request the court responded, “ Certainly,” whereupon the defendant’s counsel requested the judge to charge “ that if they arrive at the conclusion that both of them were in that position they must find for the defendant.”

In answer to this request the court said : “No, they must examine the conduct of these two men upon the principles I have given them, but always with reference to the situation in which they found themselves.”

It was not error to refuse to charge that if the jury found both the plaintiff’s intestate and the motorman in a position of peril they must find for the defendant, although the judge would have been bound to charge, if asked to do so, that under such circumstances the motorman would not be called upon any more than the plaintiff’s intestate to exercise the same nice discrimination as though no danger had unexpectedly become manifest.

I recommend affirmance of the judgment and order.

All concurred, except Goodrich, P. J., who thinks the verdict excessive.

Judgment and order unanimously affirmed, with costs.  