
    Ellen Fitzsimons, as Administratrix, etc., of Peter Fitzsimons, Respondent, v. Felix Isman, Appellant.
    First Department,
    February 5, 1915.
    . Motor vehicles—negligence — policeman killed by automobile while on duty — degree of care required — when erroneous charge as to burden of proving contributory negligence not a ground for reversal.
    Action to recover damages for the death of a police officer, who, while engaged in the performance of his duty in a city park, was struck by an -automobile belonging to the defendant and received injuries from which he died. Evidence examined, and held, to establish that the accident was due solely to the negligence of the defendant’s chauffeur who was acting under his orders..
    Although the deceased was required to use reasonable care to avoid being run over, he was not, owing to the nature of his duties, bound to use the same degree of care that would be required of an ordinary pedestrian. Although the court erroneously charged that the burden of proving contributory negligence was upon the defendant, the error was harmless where there was no evidence which would have justified a finding that the negligence of the deceased contributed in any way to his injury.
    Appeal by the defendant, Felix Isman, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of May, 1914, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 6th day of May, 1914, denying defendant’s motion for a new trial made upon the minutes.
    
      Theodore H. Lord, for the appellant.
    
      James M. Donohue, for the respondent.
   McLaughlin, J.:

Between twelve and one o’clock at night on the 1st of November, 1912, plaintiff’s intestate, a police officer in the city of New York, while engaged in the performance of his duty in Central Park, was struck by an automobile belonging to the defendant and received injuries from which he died a few minutes thereafter. This action was brought to recover the damages alleged to have been sustained by reason of his death, upon the ground that the same was caused by the negligence of the defendant. Plaintiff had a verdict for a substantial amount, upon which judgment was entered, from which defendant appeals.

The evidence at the trial was sufficient to justify the finding of the jury that the chauffeur who was operating the automobile at the time the accident occurred was acting for and under orders of the defendant, and that the accident was due solely to his negligence. He saw the intestate before it occurred and had he exercised the care which the law imposed upon him, could have avoided running into him. From the evidence a finding was justified that the automobile was not only being run at a very high rate of speed, hut that it was on the wrong side of the road. The intestate, as said, was a police officer and at the time was performing his duty as such. He was, undoubtedly, required, in view of the performance of the work assigned to him, to use reasonable care to prevent being run over. He was not, however, obligated to use the same degree of care that would be required of an ordinary pedestrian. The rule to he applied, in view of the work which he was doing, is similar to that applied to persons who are employed by a municipality to work upon the public streets. (O’Connor v. Union R. Co., 67 App. Div. 99; Volosko v. Interurban St. R. Co., 190 N. Y. 206.)

But it is said that the judgment must be reversed because the court charged the jury that the burden of proving the death of the intestate was due to his own negligence was upon the defendant. This was an erroneous instruction (Sackheim v. Pigueron, 163 App. Div. 180), but did not harm the defendant because there was no evidence which would have justified the jury in finding that the negligence of the intestate contributed in any way to his injury. He being free from contributory negligence the question of the burden of proof on that issue “ was merely academic.” (Nicholson v. City of New York, 165 App. Div. 921.)

The judgment and order appealed from, therefore, are affirmed, with costs.

Ingraham, P. J., Laughlin, Dowling and Hotchkiss, JJ., concurred.

Judgment and order affirmed, with costs.  