
    Daniel Reardon, Respondent, v. The Third Avenue Railroad Company, Appellant.
    
      Negligence — degree of care required upon the part of a cable road to avoid a collision at a street crossing—charge that there is no proof that the injuries were permanent.
    
    In an action brought to recover damages for personal injuries caused by the alleged negligence of the defendant upon the occasion of a collision at a street crossing between the defendant’s cable car and a dirt wagon of the plaintiff, it is erroneous for the court, when speaking in its charge of the degree of care to be observed by the parties, to say that “ they were bound to use the same degree of care, the same degree of prudence. Bach was bound to look, out for and, if possible, prevent any accident,” as the effect of the language used would he to make the defendant an insurer of safety while its only obligation was to use that degree of care which a person of ordinary prudence would use while acting under similar circumstances.
    Where the proof made upon the part of the plaintiff indicates, at most, that at the time of the trial he had not fully recovered from his injuries and that he still suffered pain, and there is no further proof in the form of an opinion or otherwise that his injuries will be permanent, it is erroneous for the court to refuse to charge the jury that there is no proof of permanent injury.
    Appeal by the defendant, The Third Avenue Railroad Company, 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 20th day of May, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of May, 1897, denying the defendant’s motion for a new trial made upon the minutes.
    
      Nathan Ottinger, for the appellant.
    
      Sumner B. Stiles, for the respondent.
   O’Brien, J.:

The action was brought to recover damages for injuries to plaintiff’s person and to his horses and truck, alleged to have been caused by the negligence of the defendant.

The testimony shows that, on or about June 26, 1895, shortly before twelve o’clock, the plaintiff was driving a heavily-loaded dirt wagon, drawn by two horses, through Ninety-eighth street, from west to east, and, in crossing Third avenue, had passed in safety the west or downtown track, but was struck by one of the defendant’s cars on the east or uptown track.

The car was an open car, the seats facing front. There is a down grade going north on Third avenue between Ninety-seventh and Ninety-eighth streets of about three feet in one hundred, and Ninety-eighth street has a down grade from west to east towards Third avenue.

The plaintiff’s own account of the accident is that his team was going along at a good clear walk,” and when he got to Third avenue he looked both ways; a south-bound car had just passed, and there was nothing in the way on the west track, but a north-bound car was at Ninety-seventh street; that he saw it coming very close on him before he reached the uptown track; that he drove along and was “ middleways in the track ” when he saw the car coming with great speed upon him; that he spoke to his horses to get away in a hurry, but they did not go any faster, and he raised his whip hand and called out to the gripman to give him fair play, but that the car came on and struck his wagon, knocked him to the ground, broke his truck and injured his horses so that they were of no more use to him, and he himself was laid up for nearly a year from his injuries, and at the time of the trial, May, 1897, was still unable to work.

Thomas Henry, an eye-witness of the accident, called by the plaintiff, testified that when the plaintiff got to the north-bound track the car was about seventy-five or one hundred feet away, if not more, going about nine and a half or ten miles an hour; that the horses crossed the track and the car came down and hit the truck midway the center,” and that when within about fifteen feet of the truck the gripman made an attempt to slacken the speed of the car.

Frederick A. Wall, a witness for the plaintiff, who was a passenger on the car, sitting near the front in the second seat, testified that the dirt cart was being driven at a pretty fair rate of speed; that the car could not have been more than from twenty-five to forty feet away when the plaintiff started from the crossing to go across, and that the car slackened its speed just about the moment of the collision.

A Dr. Fischlowitz. who was also a passenger on the car, testified in plaintiff’s behalf that when the car was about fifty feet south of Ninety-eighth street he saw the plaintiff’s team on the uptown track, so that the hind quarters of the horses were between the rails of the north-bound track.

On the part of the defendant, the grip man, James H. Grady, testified that he was .coming along at the speed of the cable, and when about one hundred feet from the Ninety-eighth street crossing he saw the plaintiff’s horses “ peeping out ” behind two vans that were standing on the west side of Third avenue; that he rang his bell, opened the grip and applied the brakes; that before the plaintiff reached the downtown track he was about forty-five feet away, and about twenty-five feet from him when his horses stepped on the uptown track; that he shouted to the plaintiff, but he paid no attention either to the bell or his cries, but continued across, and the car slid into the wagon, striking the hub of the forward wheel. He further testified that a sprinkling cart had been going along there back and forth, and that the track was slippery. Dr. Fischlowitz also says it was a slippery day; and it was shown by the records of the weather bureau that there was a light fog that morning.

It will be seen that the questions of fact as to the defendant’s negligence and the plaintiff’s freedom from contributory negligence were close, and were to some extent dependent upon the distance of the plaintiff from the car when he attempted to cross the defendant’s east or uptown track. This was recognized by the learned trial judge, who, in charging the jury, said: “ So it comes to the question of the distance in front of which the plaintiff undertook to cross the approaching car of the defendant.” And in the main charge he said : If you find that the plaintiff attempted to cross the track of the defendant when the car was only thirty feet or thereabouts away, then I charge you that there was a reckless approach by the plaintiff to the defendant’s track, and there should be no recovery by him in this action on that account.”

If we assume, as testified by the plaintiff, that the car was more than thirty or forty feet away when he went upon the track, and that this question upon the conflicting evidence was properly submitted to the jury, there are other exceptions in the case which are fatal to the judgment. Thus, in the charge, in speaking of the degree of care to be observed by both the plaintiff and defendant, the court said : “ They were bound to use the same degree of care, the same degree of prudence. Each was bound to look out for and, if possible, prevent any accident.” The obligation of the defendant was to use that degree of care which a person of ordinary prudence acting under similar circumstances would use, and, strictly construed, the effect of the language quoted would be to make the defendant an insurer of safety. It may be said that it was as unfavorable to the plaintiff as .to the defendant, but this by no means undoes the damage which such a statement of the law would be likely to inflict upon the defendant, and more especially if we consider it in view of the court’s refusal to charge that “ the gripman was not bound to attempt to stop his car when he first saw the plaintiff’s wagon.”

Again, the defendant presented the following request: I charge you that there is no proof of permanent injury in this case.” The complaint had alleged permanent injury,.and the court had said in its charge that the jury might conrpensate the plaintiff “not only for the pain and suffering in the past, but the pain and suffering in the future, if you believe that he will necessarily, as a result of these injuries, suffer further pain and suffering.” There was no evidence of permanent injury, the testimony of the physician being that upon examination after the accident he found that two ribs were fractured, which ordinarily takes two cp three weeks to unite; and while it did appear that four months after the accident the plaintiff was weak and unable to work arid had pain, and at the time of the trial, which took place a year and a half after the examination last alluded to, the doctor testified he -could still distinguish the place where the ribs were broken, he did not testify to any permanent or at that time existing injury ; and that the fact did not appear except as it might be inferred from the statement of the plaintiff that at times he suffered pain. With respect to the medical testimony, even as supplemented by that of the plaintiff, the most that could be said was, that at the time of the trial the plaintiff had not entirely recovered from his injuries. In the absence of proof in the shape of an opinion, or otherwise, that such injuries were reasonably certain to be permanent, it was the duty of the court to charge in accordance with the undisputed facts.

There were some minor errors in rulings upon evidence, in the. judge’s charge respecting the elements of damage and in refusals to charge as requested, which, in view of the large damages awarded by the jury, must have affected their verdict. The character of the injuries, the absence of any proof of permanent damage, and the evident attempt of the plaintiff to exaggerate such as lie received, if there were nothing else, would have caused us to hesitate to affirm this judgment. But in view of the errors committed, some of which we have pointed out and which cannot be regarded as harmless, the judgment should be reversed and a new trial ordered, with costs to tire appellant to abide the event.

Van Brunt, P. J., Williams, Patterson and Ingraham, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.  