
    Julia Rattagliata, as Administratrix of Thomas Moglia, Deceased, App’lt, v. William L. Hubbell, as Treasurer of Adams Express Company, Resp’t.
    
      (New York Common Pleas, General Term,
    
    
      Filed February 5, 1894.)
    
    1. Negligence—Degree of Care.
    The owner of a vehicle is bound to use such care only as a person of ordinary prudence may be' expected to exercise under the same circumstances.
    2. Same—Contributory.
    Negligence on the part of the person injured, when a proximate cause of the injury, is contributory and fatal to recovery.
    Appeal by plaintiff from a judgment in favor of defendant, entered upon the verdict of a jury, 'and from an order denying plaintiff’s motion for a new trial. The appeal is argued upon a bill of exceptions.
    The action is to recover damages for the death of Thomas Moglia, seventeen years of age, who was run over and killed by an express wagon of defendant in Water street, on April 80th, 1888. The complaint charges negligence on the part of the driver of the wagon in driving at an excessive rate of speed and in governing and directing the wagon and horses, and averred that the plaintiff was free from contributory negligence. The answer denied the allegations of the complaint. The jury found a verdict for defendant.
    
      Whitehead <£ Lyon (II M. Whitehead of counsel) for app’lt; Seward, Da Gosta & Guthrie (V. Morawetz and Wm. D. Guthrie of counsel) for resp’t.
   Daly, C. J.

The testimony shows that the boy ran across the street in front of the approaching wagon, which was coming at an unusual rate of speed, and that he slipped and fell, and was run over. The evidence was conflicting as to how far the horses were from him when he fell, there being some evidence that he fell twenty-five feet in front of them, and other evidence that he was just close to the pole of the wagon near the horses heads when he fell, and some evidence tending to show that the wagon might have been stopped before passing over him, and some evidence tending to establish the contrary; and there was evidence tending to show that the driver of the wagon, after he first saw deceased, might have avoided the accident, and there was evidence tending to show the contrary.

Upon this conflict it was a question for the jury whether the driver of the wagon was negligent, and if so whether his negligence was the sole cause of the injury, or whether the deceased was negligent in crossing in front of the wagon while it was approaching at an unusual rate- of speed, and if so, whether his negligence was a proximate cause of the injury; and we cannot disturb the verdict unless it is affected by a misdirection upon the law or by error in the ruling of the court upon the admission of evidence.

There having been in course of the examination of some of the witnesses inquiry as to the use of brakes upon heavy wagons and of curb-bits upon the horses, the court charged the jury that there is no law which requires express wagons to have brakes or requires drivers to use curb bits on horses, and that the general rule is that vehicles shall be used that are safe for ordinary purposes, such as menz of common sense habitually use; and such bits shall be used as men of common sense in their private affairs usually have; and that there is no greater obligation upon an express company than upon men engaged in any other business. The defendant then asked the court to charge that the company was bound to use every appliance which is generally known and in use for the safety of passage of persons walking upon the street. The court responded: “ I will say that they are bound to use such appliances as are commonly used by men of common judgment and common prudence in the city of New York.” The defendant excepted as far as the request was not “charged.

There was no evidence that brakes and curb bits were -generally used in connection with such vehicles as were operated by defendant, nor generally with vehicles in city streets; but, as they are well known appliances, appellant claims that if defendants were not negligent as matter of law in not adopting them, the question should have been submitted to the jury. The judge did not excludé from the consideration of the jury the question of the use of the appliances named, but left it to the jury to say if they were commonly used by men of common judgment and common prudence in the city of New York. The question of brakes and curb bits was, therefore, submitted to the jury under a proper instruction as to law, for defendants were not bound to do more than common prudence required. The obligation of one using the streets of a city, whetherto walk of drive, is the same, viz : the exercise of ordinary care; such care as a person of ordinary prudence would exercise under the circumstances. The owner of a vehicle is not bound to furnish appliances which will render an accident impossible or to use the highest degree of care to make it safe, but only such care as a person of ordinary prudence may be expected to exercise under the same circumstances. Unger v. 42nd St. R. R. Co., 51 N. Y. 487. Such even is the limit of obligation of a steam railroad company towards its passengers with-respect to its platform structure, Lafflin v. Buffalo & S. W. R. Co., 106 N. Y. 136; 8 St. Rep. 596; and of a steamboat company with respect to a gangway rail Dougan v. Champlain T. Co. 56 N. Y. 1; Loftus v. Union Ferry Co. 84 N. Y. 455 ; and the owners of a mine with respect to a car used in ascending and descending the mine, Burke v. Witherbee, 96 N. Y., 562; and of carriers of passengers with regard to appliances within the cars, i. e., racks to hold parcels. Morris v. N. Y. C & H. R. R. Co. 106 N. Y. 678; 4 St. Rep. 204. In the case last cited the rule of obligation is declared to be reasonable care to be measured by the circumstances surrounding each case. And it has been held •not to be negligence to use a heavy coal wagon which had no stop bar or appliance to prevent its backing down hill. Newcomb v. Van Zile, 34 Hun, 275. It is manifest, therefore, that defendants were not required to use all appliances generally known and in use, but only such as reasonable care required, and this question was submitted to the jury. In the case of Mentz v. Second Ave. R. R. Co. 3 Abb. Ct. App. Dec. 274, where the plaintiff had fallen upon the track of a city railroad and was run over by the car, Chief Justice Hunt observed: “Ordinary care is' not sufficient, •under such circumstances. If a human being is seen, by the engineer or by the driver, .lying upon a railroad track, it is his duty to exercise the very highest care and to make the greatest effort to avoid his destruction. That ordinary care and reasonable diligence which would suffice to protect a bale of goods is far below the standard required on such an occasion. This doctrine is laid down in all the cases as to locomotive trains, and the principle is the same as to horse cars. The care and attention must be in proportion to the damages or injury. The very best means of protection must be furnished by the company to their agents and their agents must use them in the most skillful and careful manner.” These remarks must be considered with regard to the facts of the particular case, where the driver, engaged "in conversation With the passengers, with his back towards the horses, did not see the child which had fallen on the track. There was" no question in the case of the use of the particular appliances or the want of them on the car, and it cannot be questioned that the driver in that case failed to exercise even ordinary care. The- case does not conflict with the current of decisions.

The court having left the question of deceased’s contributory negligence to the jury, the plaintiff asked an instruction “ that although the plaintiff may have been negligent at the time he was running across the street, if that was the proximate cause of his injury, and the defendant could have avoided it with due care, the plaintiff is entitled to recover ”; the judge said “ that would be a correct statement of a proposition of law if the negligence of the deceased were not proximate. I don’t see how is applies to this case. I do not charge it.” An act may be a proximate cause of the injury, yet if it be not negligent, it will not bar a recovery. Putnam v. N. Y. C. & H. R. R. R. Co., 47 Hun, 441; 14 St. Rep., 329; but the request called for an instruction which conceded the negligence of the plaintiff as a proximate cause of his injury, and a recovery in such a case would be directly against principle and authority. Negligence on the part of the person injured when a proximate cause of the injury is contributory and fatal to recovery. 4 Am. and Eng. Ency. of Law, Title, “ Contributory Negligence.”

Error is claimed in submitting any question as to contributory-negligence to the jury. Nk> exception was taken to the charge in that respect; but it is urged that as the plaintiff had ample time to cross the street but slipped and fell in front of the horses, it was the duty of the judge to charge the jury that deceased wras not guilty of any contributory negligence. No such request was made, but the court did expressly instruct the jury upon that point, saying, in speaking of • the testimony of one of the witnesses, “ he says that the boy crossed from tjie westerly side to the easterly side, and that he was coming back to the westerly side at the time this vehicle was approaching; then he says in consequence of the slipperiness of the pavement the boy fell, and before he could rise and get away, this vehicle came upon him at a rapid pace. If that statement be true, it would appear that the boy was the victim of misfortune; that he fell, which any person is likely to do; and there could not be any negligence attributed to him on his part, if that were true.” This instruction was as favorable as plaintiff could ask. There was testimony that deceased ran almost directly under the nose of the horses and that he turned, or threw himself back, to save himself and then slipped and fell, evidence which justified a finding that he attempted to cross when there was not time to do so in safety. Upon the evidence the jury might have found that the injury was due to the negligence of the deceased or was the result of unavoidable accident.

Judgment affirmed, with costs.  