
    Max Brachfeld, Respondent, v. The Third Avenue Railroad Co., Appellant.
    (City Court of New York, General Term,
    November, 1899.)
    Negligence — Person driving on a street car track, injured without his fault, by a rear collision with a following car.
    In an action brought to recover damages for personal injuries caused by the alleged negligence of a street railroad corporation in the city of New York, it appeared that the plaintiff was driving on the track, that a street car came up behind him without warning, and that although, as soon as he had looked back and saw it coming, he attempted to get out of the way, he was too late to escape a collision.
    Held that he was not guilty of contributory negligence.
    That he had a right to drive on the track, and that his presence there afforded the corporation no justification for permitting its caito collide with the rear of his wagon.
    Appeal from a judgment, entered upon a verdict, and from an "order denying a motion for a new trial.
    
      Hoadly, Lauterbach & Johnson (Edward M. Johnson, of counsel), for appellant.
    Joseph I. Green, for respondent.
   Cowlah, J.

The action was brought to recover damages for personal injuries claimed to have been occasioned solely through the negligence of the defendant’s servants.

The defendant gave no evidence upon the trial, but asked a reversal upon the following grounds: First. The verdict was grossly excessive. Second. The court erred in charging the jury. Third. Improper elements of damages were submitted to the jury. Fourth. Errors in admission of evidence.

" Hpon the question of excessive damages counsel for the defendant has seen fit to spread before us a long line of cases, with the amount of damage received in each, varying from $375 to $1,500. If the verdict of a jury, in any single instance that may be selected, is to be the criterion to guide all other juries, then anything above a minimum would be excessive, and all verdicts above that sum would have to be set aside. This would be going further than we think counsel would be willing to go. To undertake to thus control and limit a jury would be to establish a dangerous rule. Juries are not to be thus limited, and, in view of all the authorities cited, we cannot say that the amount fixed by the jury in this case was excessive.

The charge of the court was in no way prejudicial to the interests or rights of the defendant, and was, in our opinion, eminently fair; the court said: “I charge you, as matter of law, that the plaintiff had a perfect right to take his wagon upon the tracks of the defendant company, and to continue thereon, and that fact would furnish no justification to the company to allow its car to collide with the rear of plaintiff’s wagon.” It will be borne in mind that this is the case of a surface railroad operating cars in the crowded thoroughfares of a great city (Hew York), and where wagons and teams and foot passengers are constantly crossing the tracks of the company, using the public streets.

It is not contended that the defendant gave no evidence, and if the version of the plaintiff was not the true one, the defendant would certainly have contradicted him; but there is no dispute upon the facts, nor do we think there was any error in the charge of the trial judge.

It does not appear that any warning whatever was given to the plaintiff of the approach of the car; it is true, fhat the plaintiff, on looking hack, saw the car coming behind him and endeavored to get out of the way, and, while engaged in this effort, his wagon was struck and the damage resulted in consequence. We cannot say, under all the circumstances, that this was negligence on the part of plaintiff which contributed to the injury, and the record does not present to our view any admission of evidence or improper submission of the elements of damages which call for an interference with the result reached by the jury; and we think the judgment and ■order appealed from should be affirmed, with costs.

Eitzsimons, Ch. J., and McCarthy, J., concur.

Judgment and order affirmed, with costs.  