
    John P. Duffghe, Respondent, v. Metropolitan Street Railway Company, Appellant.
    Second Department,
    December, 1905.
    Negligence — right of way of insurance patrol under city charter — charge as to duty of motorman to give such right of way.
    The plaintiff while driving the wagon of a fire insurance patrol was injured by collision with" defendant’s car.
    
      Held, that the provisions of the charter of Greater New York giving to the insurance patrol a right of way over all vehicles, except those carrying the United States mail, and making it a misdemeanor to refuse such right of way, . are not in violation of the Constitution;
    That, under such statute, as an abstract proposition, it is the absolute duty of a motorman to accord such insurance patrol a right of way if he have opportunity to do so, irrespective of any requirements as to reasonable care.
    Hence, when a charge, taken as a whole, states that such motorman is only ■ required to exercise reasonable care and to give such right of way only when prudence requires it, there is no error of which the defendant can complain. ' Woodward and Jenks, JJ., dissented.
    Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of. the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 7th day of December, 1903, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 9th day of December, 1903, denying the defendant’s motion for a new trial made upon the minutes.
    
      Bayard H. Ames [Francis Pope and Henry A. Robinson with him on the brief], for the appellant.
    
      William O. Beecher [George C. De Lacy with him on the brief], for the respondent,
   Hirschberg, P. J.:

The plaintiff’s, judgment is for personal injuries received on December 24, 1901, in a collision with one of the defendant’s cars while he was driving to a fire in the borough of Manhattan, Mew York city, a wagon belonging to the service of the 'fire insurance patrol. It is unnecessary to state the circumstances .of the accident in detail inasmuch as the defendant makes no claim on this appeal that the facts as,presented on the plaintiff’s behalf, if accepted as true by the jury; do not justify the verdict, but contends chiefly that error was committed by the trial court in the instructions given, on the submission of the case to the jury. . ,

By the provisions of section 748 of the Greater BFew;York charter (Laws: of 1897, chap. 378)^ as amended by chapter 155 of the Laws of 1900, the officers and men. of the'insurance patrol, with their apparatus, while at and in proceeding to any fire* when on .duty, are given the right- of way in the streets over all vehicles except those carrying the United States mail, and it is' made a misdemeanor for any person in or upon any vehicle to refuse to accord such tight of way, or to obstruct the apparatus or those in-charge of it while in the performance of their duty, We do not. consider these provision's in any respect violative of the Constitution. They, are embraced- in a public act óf which the courts take judicial notice, and the- motorman. in charge of the car with which the plaintiff’s patrol wagon collided had been instructed to regard them, and to give the right way to all fire apparatus in the streets.

It is claimed, however, on the part of the defendant that the trial court erred in charging the jury that it was the absolute duty of the defendant’s motorman to stop his car and accord the right of way to the plaintiff,, if he had opportunity and time to do so, irrespective.of the requirements of reasonable care. As an abstract proposition the duty is absolute, but a fair reading o'f the charge clearly indicates that the court expressly held the motorman only to the exercise of reasonable care in that regard., ' The court had charged generally that the measure of the motorman’s duty was only the exercise of ordinary care. The plaintiff’s counsel thereupon asked the court to. charge as follows: “ I ask yótir Honor to charge that it was the duty of the motorman of the approaching car if he discovered the patrolxtruck, or if in the exercise of reasonable care he could have. discovered it, to stop Ms car and accord to the truck the right of way which lawfully belonged to it.” To this request the court responded: “ If, by the exercise of ordinary care, he could have stopped this car.” Ho exception was taken by the defendant, and the jury accordingly must have understood that the duty to stop the car and accord the lawful right of way depended upon the motoiman’s ability to stop the car and upon the obvious requirements of oi’dinary prudence in the circumstances. The plaintiff’s counsel then made this request, viz.: “ It was .the duty of the motorman of the approaching car, if he discovered the patrol truck in tíme or if by the exercise of reasonable care he could have discovered it, it was his duty to stop the car and accord the truck the right of Way which lawfully belonged to it.” To this request the court replied: “It was his duty to exercise reasonable care under the circumstances. As so modified," I so charge.” "To 'this the defendant excepted, but as the charge was precisely what the defendant urges the law to be upon the appeal, the exception surely was not well taken. The plaintiff’s counsel then requested the court to charge: “ That .if he discovered the truck in time to stop the car I ask your Honor to charge the jury then that his duty was to stop and accord the truck the right of way; ” to which the court l’eplied : “ I.think that is coirect,” and -the defendant again excepted. The response to this request is to be taken in connection with the studious and reiterated qualifications of . the previous requests, viz., that the duty enjoined involved only the exercise of reasonable care, and this was repeated in response to the next x’eques.t on the part of plaintiff’s counsel, the court generalizing the obligation resting on the motorman by the statement that “ It was his duty to exercise such care as the conditions which confronted him and the notice he had demanded.” It was impossible for the jury to have understood from the chai’ge taken as a whole anything other than that the motorman’s duty was limited by law to the exercise of reasonable care; that the patrol wagon had the right of way by statute, and that the motorman should stop his car and yield that right of way if ordinary prudence required it in order to avoid the accident and ample time was afforded to him for that purpose.

But as has been said it was as an abstract proposition the duty of the motorman to obey the law. This was held in Geary v. Metro politan Street R. Co. (84 App. Div. 514) the court saying (p. 515): It was the duty of the driver of the street car if he discovered, or in the exercise of reasonable care would have discovered, the approach-Of the truck, to stop his car and; accord to it the. right of way.” The decision was by a divided court it is. true, but it was affirmed by the Court of Appeals .without dissent. (Geary v. Metropolitan Street R. Co., 177 N. Y. 535.) The doctrine' was reaffirmed in City of New York v. Metropolitan Street R. Co. (90 App. Div. 66). The judgment and order .should be affirmed. ■

Rich and Miller, JJ., concurred; Woodward and Jenks, JJ., dissented.

Judgment and order affirmed, with costs.  