
    James Dorman, Administrator, etc., Resp’t, v. The Broadway Railroad Company of Brooklyn, App’lt.
    
      (City Court of Brooklyn, General Term,
    
    
      Filed June 24, 1889.)
    
    1. J ury—Peremptory challenge—When right not waived.
    Plaintiff’s counsel, after the jurors had taken their seats, stated that he was content with the jury “ as then constituted;” thereupon defendant’s counsel peremptorily challenged two of the jurors, and their places were supplied. Plaintiff’s counsel then challenged peremptorily one of the jurors in the panel. Held, that the exception thereto was not well taken, there being no request that plaintiff’s counsel should exhaust his right to challenge peremptorily in the first instance.
    2, Negligence—Action for personal injuries caused by—When question ONE FOR THE JURY. ,
    Where, in an action for personal injuries caused by being run over by" one of defendant’s cars, there was evidence introduced on behalf of plaintiff tending to show that the deceased would have had ample time and space to have crossed the track had he not fallen, and that the car might have been stopped in time, Held, that the question of negligence was properly submitted to the jury.
    
      James and Thomas H. Troy, for resp’t; William M. Ingraham, for app’lt.
   Osborne, J.

This action was brought to recover damages for alleged negligence in running over and thereby causing the death of George Dorman, a son of plaintiff, aged ten years, on July 29, 1881.

It appears from the testimony that on the evening in question, deceased, who was engaged in distributing ‘ ‘ score cards ” of sporting events, - was hurrying along Ralph avenue about 8:10 p. m.; he stopped at the northwest corner •of Ralph and Gates avenues, and from there proceeded south along Ralph avenue on the west side of that avenue •until he arrived at a point variously stated by the witnesses to be from fifty to eighty feet north of Monroe street; at that point he started to cross Ralph avenue in an oblique direction; and when within about two feet of the heads of the horses of defendant’s car, which was moving northerly on the east track, he stumbled and fell, and was run over by the forward wheel of the car and killed. Plaintiff obtained a verdict of $2,500; from the judgment entered thereon, and the order denying a motion for a new trial, as well as from the exceptions taken on the trial, defendant appeals.

Before proceeding with the examination of the case we are called upon to consider an exception taken at the outset •of the trial to the ruling of the learned trial judge allowing plaintiff’s counsel to peremptorily challenge a juror under the following circumstances: After twelve jurors had taken their seats, but had not been sworn, counsel for plaintiff, in accordance with the usual practice, proceeded to examine the jurors, and then stated that he was content with the jury “as then constituted.” Thereupon counsel for defendant peremptorily challenged two of the jurors, and their places were supplied. Counsel for plaintiff not having exhausted his peremptory challenges, then challenged peremptorily one of the jurors who wras in the panel before defendant’s counsel had availed himself of his right to challenge peremptorily. Defendant’s counsel objected on the ground that plaintiff’s counsel had waived his right, which objection was overruled and an exception taken.

This exception was not well taken. Plaintiff’s counsel had not waived- any of his rights; he had only expressed himself as content with the jury “as then constituted,” leaving it plainly to be inferred that he reserved any rights ■ that he had in case the jury, as a whole, should thereafter be differently constituted, nor did defendant’s counsel ask any direction from the court that plaintiff should exhaust Ms right to peremptorily challenge in the first instance. Indeed, we think it would not have been proper for the court to compel him to do so. We can readily see how, by supplying two new jurors in place of those challenged by defendant’s counsel, the complexion of the jury might be so changed as, for instance, by what plaintiff’s counsel might consider an undue -preponderance of one nationality or creed, that counsel might deem it wise to exercise the right which the law gave him, and which he had not surrendered.

The leading exceptions taken by defendant’s counsel on the trial are to the refusal of the court to grant the motion to dismiss the complaint at the close of the plaintiff’s case, which motion was renewed at the close of the testimony and.again denied, and exception taken. The motion was based on the grounds of lack of proof of deceased’s freedom, from contributory negligence, of negligence of the deceased, and the absence of proof that defendant or its servants were guilty of negligence.

Plaintiff’s proof was to the effect that deceased was seen by a witness who was standing on the northeast corner of Ralph avenue and Monroe street, coming along the west side of Ralph avenue; when about seventy-five or eighty feet from Monroe street, deceased started to cross Ralph avenue a little obliquely; at that time defendant’s car had passed the witness on the corner, and had gone on about fifty feet; this witness’s further view of deceased was then obscured by the car, which was moving rapidly, and he saw nothing more of him till the accident happened.

Another witness, a passenger on the car, testified that he first saw deceased when he was in the act of falling, about a couple of feet in front of the horses. It further appeared that the distance from the horses’ heads to the front wheel of an open car, such as this was is nineteen feet, and one car driver testified that a car going along about six miles an hour could be stopped inside of six feet, while another testified that it could be stopped inside of twelve feet. It was also shown that the car was lighted, and that there was a lamp-post on the corner of Gates avenue, another on the corner of Monroe street and another in the middle of the block, a few feet from where the deceased started to cross Ralph avenue.

While in an action for negligence the plaintiff is bound to show his own freedom from negligence to entitle him to recover, yet it may be inferred from the nature of the accident and the circumstances of the case. It is well settled that the court cannot be called on to weigh evidence where it is of such a character that the minds of persons might reasonably differ as to the facts to be deduced therefrom. In such a case it becomes a question for the jury to consider.

Let us apply this rule to the plaintiff’s evidence. The block between Gates avenue , and Monroe street was 200 feet long. Assuming that the car was fifty feet north of Monroe street, as testified to, and that deceased attempted to cross Ralph avenue seventy-five feet noith of Monroe street, he would have had ample time and space to have safely crossed if he had not fallen.

Again it was proven that the distance from the horses’ heads to the car wheels was nineteen feet, and that a car going as this one was could be stopped within a distance of from six to twelve feet. Might not the jury fairly and reasonably infer from the evidence that deceased was free from contributory negligence; that defendant was negligent; that if defendant’s driver had been careful and attentive to his duties, he could have stopped the car before the wheels reached the boy’s body %

The evidence, it seems to us, was of such a character as to require its submission to the jury with proper instructions. The testimony on behalf of the defendant as to the accident was confined to the evidence of the driver and a passenger on the car. The latter testified that the car was stopped suddenly, and with a jerk. The driver gave his version of the occurrence, and claimed that he was doing his duty, and that he did all he could to prevent the accident. There was presented no such preponderance of proof as would have justified the court in dismissing the complaint at the close of the testimony. The credibility of the driver’s evidence, under all the circumstances, Was a question for the jury to weigh, and it was the jury’s province to decide just what weight it was entitled to.

The exceptions at folios 75 and 76 are untenable. We think the questions objected to were proper under cross-examination for the purpose of enabling the jury to determine what the driver’s ideas of his duty were, but even if this were not so, as the driver testified that he did what he conceived to be his duty, the defendant was not prejudiced thereby.

We have considered the exceptions to the various refusals of the court to charge as defendant’s counsel requested. None of them appear to us to be well taken. The law covering the case was very fully and carefully presented to the jury by the learned trial judge, and therewas no •error in his refusals to charge as requested.

For the reasons above stated, we are of the opinion that the judgment and order denying motion for a new trial should be affirmed.

Judgment and order denying motion for a new trial affirmed, with costs.

Var Wyck, J., concurs.  