
    Marcus A. Ball, Appellant, v. The Interurban Street Railway Company, Respondent.
    (Supreme Court, Appellate Term,
    December, 1905.)
    Instructions — Power of court and necessity — Effect of omission to charge.
    Where the tracks of a street railway were considerably uneven, one of them being much depressed and having been so for a long time, and a passenger on an open car while motioning the eonductor to stop was shot out of the car, receiving injuries, and, in an action by the passenger to recover damages for such injuries, the court did not charge the jury at all upon the law of the case, a verdict for the defendant should be set aside and a new trial granted.
    Appeal by the plaintiff from a judgment of the City Court of the city of ISTew York, entered on the verdict of a jury in favor of defendant, and also from an order denying plaintiff’s motion for a new trial.
    Billington & Caldwell (Reno R. Billington, of counsel), for appellant.
    Henry A. Robinson (Bayard H. Ames and E. Angelo Gay-nor, of counsel), for respondent.
   Scott, J.

In my opinion justice requires that this cause should be retried. The plaintiff was a passenger on an open car operated by defendant. The accident occurred on Lenox avenue between One Hundred and Thirty-fifth and One Hundred and Thirty-sixth streets. At this point there was a considerable unevenness in the tracks, one of them being much depressed so that there was a succession of dips.” This condition had existed for some months. The plaintiff, wishing to alight at One Hundred and Thirty-sixth street, half turned in his seat and motioned to the conductor to stop and, at this moment, the plaintiff was shot out of the car, receiving injuries. There was a suggestion from one witness, scarcely amounting to testimony, that the unevenness of the track resulted from the construction of the subway. The, clear evidence, as to the bad condition of the track and the long continuance of that condition, certainly imposed upon defendant the exercise of a high degree of care in operating its cars at this point. The case as presented on this appeal is remarkable from the fact that no instructions whatever were given to the jury as to the duty which the defendant owed to its passengers, or as to its obligation to use care in the maintenance of its roadbed or in the operation of its ears over a piece of defective roadway. In short, the jury were left wholly uninformed as to the law applicable to an action for damages for negligence. The plaintiff made a number of requests to charge all of which were refused. In the main, they undoubtedly went too far and sought to impose too stringent a liability upon the defendant; although, in view of the evidence as to the condition of the roadbed, I am inclined to think that the jury should have been charged that the defendant was bound to exercise its utmost skill and vigilance to guard against the . possibility of accident from the condition of its road. I do not, however, dwell upon the refusal to charge any particular request as the error justifying reversal. I prefer to base my position upon the fact that the jury were not charged at all upon the law of the case, but were left to grope in the dark, applying to the facts what they may have guessed to be the-law, rather than what they had been instructed was the law.

The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

Bischoee and MaoLean, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.  