
    John Meenagh, Appellant, v. John Buckmaster, Respondent.
    
      Negligence — a vehicle upset by rubbish negligently placed in a street—duty of one, driving by invitation with another, to remonstrate against his reckless driving — misuse of a municipal consent to the placing of building materials in a street.
    
    On the trial of an action brought to recover damages for personal injuries caused by the alleged negligence of the defendant in obstructing a city street by rubbish, it appeared that a vehicle, in which the plaintiff was being driven by invitation, by one Kernahan, came in contact with the rubbish and upset, injuring the plaintiff.' The court charged that'“if Kernahan was intoxicated or his manner of driving was so heedless or careless as that Meenagh (the plaintiff), in the exercise of ordinary care, would have perceived it and failed to do so and to remonstrate wiijh Kernahan, he (the plaintiff) was chargeable with contributory negligence for'eontinuing to ride with him.”
    
      Held, that the charge was corree*-
    A consent given by a municipal corporation to the placing of building materials in a public street does not relieve the licensee from liability to one who has suffered injury from the improper manner in which the licensee has used the consent.
    Appeal by the plaintiff, John Meenagh, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 16th day of November, 1896, upon the verdict of a jury of no cause of action, with notice of an intention to bring up for review upon such appeal an order denying the plaintiff’s motion for a new trial made upon the minutes.
    
      
      Jonathan Deyo, for the appellant.
    
      A. H. F. Seeger, for the respondent.
   Hatch, J.:

This action, was brought to recover' damages far an injury sustained by the' plaintiff on account of the negligence of. the defendant in causing to be placed in the streets of the city of. Newburgh a quantity of refuse matter consisting of earth taken from an excavation and rubbish from a building..

There was a considerable quantity of this material.' It was placed in the street and permitted to remain over night, and po light or other signal was placed upon it to indicate its presence in the street. The plaintiff was invited to ride with one Kernahan, and as they were driving through the street the vehicle in which they were riding name in contact with the pile of rubbish, and the plaintiff was thrown out and sustained injuries for which a recovery is sought.

■ The evidence given upon the trial tended, to establish that the horse was being driven at a rapid.rate of .speed prior to and at the time when it came in contact with the obstruction. The evidence justified the. jury in finding that the rate of speed and manner in which the horse was driven constituted negligence upon the part of the driver. There was also evidence which authorized the jury to find that, if the driver and the plaintiff had exercised care, they might have seen the obstruction, and there was abundance of room in the street to pass it without contact. The main questions which are presented for our consideration rest upon the refusal to charge' as requested by the counsel for the plaintiff and also upon errors in rulings by the court upon the trial. The .request which the court refused to, charge is in these words“ I ask your honor to charge the jury that, if they find that the plaintiff in no -wise contributed to the fast driving, they are not to consider such driving as bearing on the question of plaintiff’s contributory-megligence.” ^ The general ...rule is recognized that the negligence of the driver of the vehicle is not to be imputed to a passenger therein who at the timé has no authority, to direct his movements or control his actions. Such rule, however, is subject to the qualification that it is the duty of the passenger, where he has the opportunity to act, to learn of the danger and. avoid it if practicable. (Brickell v. N. Y. C. & H. R. R. R. Co., 120 N. Y. 290.) None of the cases upon this subject assume to do more than lay down a general rule which may be modified by the circumstances of the particular case. (Robinson v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 11; Hoag v. N. Y. C. & H. R. R. R. Co., 111 id. 199.)

It follows that in the consideration of such questions each case must be disposed of u]3on its particular facts; Therefore, we must consider the evidence and the general charge of the court upon the subject. The evidence, as we have before observed, tended to establish that the horse ’was being driven at a rapid and reckless rate of speed and that care and attention would have discovered the obstruction and avoided it. Under these conditions .the court charged: If Kernahan was intoxicated or his manner of driving was so heedless or careless as that Meenagh, in the exercise of ordinary care, would have perceived it, and he failed to do so and to remonstrate with Kernahan, he was chargeable with contributory negligence for continuing to ride with him, because if it occurred to Meenagh’s mind that the driving was dangerous and careless, and he assented to it, then he was a party to it.v As to the plaintiff’s own negligence,' a passenger has no right, because some one else is driving, to omit some reasonable and prudent effort to see for himself the danger, if there was a danger, and to avoid it.” We think this charge is correct as applied to the -facts of this case. We must assume that, in the exercise of reasonable care and prudence, the plaintiff could have observed the obstruction. Under - such circumstances he ought not to remain passive; the situation required upon his part some affirmative act, either of remonstrance to the driver or by way o£ attracting his attention to the obstruction ; he could not remain inert and shelter himself, under the claim that he had no control of the horse' or the driver. The jury might well say that reasonable care on . his part would have restrained the driver from going at a reckless rate of speed or have enabled him to avoid the obstruction. The request to charge leaves out these elements, and consequently no error was committed in refusing to charge it. On the contrary, we.think the general charge fully covered this subject, and was all to which the plaintiff was entitled. We may assume that the permit which was issued by the city of Newburgh to Sager, authorizing him to place building material in the street, was no protection to the defendant and that it was improperly received as evidence. Upon this subject counsel for the plaintiff made the following requests: _

“ I ask your Honor to charge that a consent' given by a corporation, to place an obstruction in a- public street, does not relieve the party, to whom the consent, is given, from liability in an action against that party, when such action is based on the wrongful manner in which the act is done.” “ And I ask, in view of that, that, the Court charge that the consent or permission of the corporation,, introduced in evidence in this case, does not relieve 'the defendant, from an action for negligence.” The court charged both of these requests, and thereby eliminated from the consideration of the jury the permit which had been received in evidence. The jury, was bound to treat it as constituting no defense to the action, in consequence of which this evidence became immaterial, and the ruling was cured by the charge.

The court permitted proof, under the objection of the plaintiff, that, it was not the custom in the city of Hewburgh to place lights upon obstructions which remained in'the streets over night. This ruling would be clear error and could not be sustained' were it not for the fact that the plaintiff opened the door to such inquiry by .asking: “ What is the custom as. to putting lights in excavations ? ”' to which the witness replied : “ They are supposed to have a light on a place like that at night.” The plaintiff seeks to avoid the force of this by the claim that his inquiry related to excavations and not to obstructions. Such is ¡the form of this question, but' the witness evidently understood that it related to this obstruction . or one of a .similar character. His answer applied to the obstruction alone, as there was no reference to any excavation constituting an obstruction to the highway, and we think it clearly related to obstructions of this character, and that the witness in giving his answer, and the jury in hearing it, must have so understood. The plaintiff, therefore, could not complain of testimony to rebut what his evidence tended to establish.

We find-no reversible error in the case, nor any other question justifying further discussion.

The judgment and order should be affirmed, with costs.

.Judgment and order unanimously affirmed, with costs.  