
    Robert Dooling, an Infant, by Agnes Dooling, His Guardian ad Litem, Appellant, v. The City of New York, Respondent.
    Second Department,
    January 12, 1912.
    Municipal corporation—negligence — injury by horse left unattended on public street — charge and refusals to charge examined and approved—evidence—cross-examination, discretion of court.
    Where counsel unites a request to charge an unsound proposition "with, a proper request, the value of his exception to the court’s refusal to charge the entire request depends upon whether the entire request was sound, pertinent and not a reiteration. It is not the duty of the court to separate the good part from the had so that it may charge the former.
    In an action against a city to recover for personal injuries received by an infant who was run over by an ash cart owned bythe city, it is proper to charge that the fact that the driver of the cart left the horse unfastened and unattended upon the public highway is prima facie evidence of negligence.
    But where in making a request to charge the aforesaid proposition, the plaintiff’s counsel coupled it with a request to charge that the city’s negligence was not to he determined by what “the butcher or the baker would do under ordinary circumstances, or an ordinarily prudent man,” it is not error to refuse to charge the entire request.
    In such action the negligence of the defendant is to he determined by what an “ ordinarily prudent man ” would do under 'Ordinary circumstances. In an action to recover for injuries so caused it is not error to charge in substance that the fact that the horse was left untied and unattended on the public street required the submission of the defendant’s negligence to the jury and that they could find negligence if the act was not that of an ordinarily prudent man.
    In such action it is not reversible error to refuse to charge that if the jury find that leaving the horse unattended and unfastened upon the highway was the proximate and sole cause of the injury, the verdict must he for the plaintiff. This, because, while such act might be the proximate and sole cause of the injury, it did not necessitate a verdict for'the plaintiff, as the jury might still fin’d the defendant not negligent or the plaintiff guilty of contributory negligence.
    Where the defendant’s driver admitted that he had stopped at the place of the accident and had entered an adjoining house on other occasions, it is not error for the court in its discretion to refuse to allow the plaintiff’s counsel to ask on cross-examination the reasons of the witness’ other absences, he having testified on that matter at a prior trial, for the inquiry had nothing to do with his absence at the time of the accident.
    Cross-examination is a matter of right when directed to facts in issue or relevant facts; but when its object is to ascertain the accuracy or credibility of a witness its extent rests within the sound discretion of the trial judge.
    Appeal by the plaintiff, Robert Dooling, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 24th day of May, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of June, 1911, denying the plaintiff’s motion'for a new trial made upon the minutes.
    
      
      Robert Stewart [Ralph G. Barclay with him on the brief], for the appellant.
    
      James D. Bell [P. E. Callahan with him on the brief], for the respondent.
   Jenks, P. J.:

The action is for negligence. There was a verdict for the defendant at Trial Term which I think was not against the weight of evidence. The defendant’s driver left the defendant’s horse, attached to an ash cart, standing unfastened in a city-street, and went into a house on that street. During his absence the infant plaintiff fell under the wheels of the cart while the horse was moving, and was injured. The plaintiff-appellant attacks the judgment mainly upon his exceptions to rulings of the learned court.

At the end of the charge plaintiff’s counsel said: “I ask your Honor to charge the jury that in determining the negligence of the city or the city’s driver it is not what the butcher or the baker would do under ordinary circumstances, or an ordinarily prudent man, but that the leaving of a horse unfastened and unattended upon the public highway is prima facie evidence of negligence. The Court: I decline to charge that.” After disposition of another request the counsel for defendant, referring to the request now in question, said: I have no objection to the court charging as a legal proposition that the leaving of a horse unattended on the street is prima facie evidence of negligence, if the court will explain it to the jury. The Court: I will state to the jury what I understand the law to be. The leaving of a horse on the highway unattended requires the court as a matter of law to leave it to the jury to determine as a matter of fact whether or not it was negligence. Plaintiff’s Counsel: That I except to. The Court: And the jury are permitted to find if an ordinarily prudent person would not do so, that it is negligence. Plaintiff’s Counsel: I except to that also.” If the request had been confined to the proposition “ that the leaving of a horse unfastened and unattended upon the public highway is prima facie evidence of negligence,” an exception to a refusal thereof would have been well taken. (Doherty v. Sweetser. 82 Hun, 557; Pearl v. Macaulay, 6 App. Div. 70; Lane v. Lamke, ,53 id. 395; Brand v. Borden's Condensed Milk Co., 89 id. 188; Gorney v. City of New York, 102 id. 260; Thomp. Neg. [2d ed.] § 1294, and cases cited.) But as the counsel united this proposition with- another, the exception must he tested by consideration whether the entire request was sound,, pertinent and not a reiteration. It was not the duty of the court to separate the good part from the had part so that it could charge the former. (Hamilton v. Eno, 81 N. Y. 116, 127.) The verbiage of the request is explained by language theretofore used by the court, as follows: “ Counsel says that the grocer, the butcher and the milkman' do the same thing, that the city should not be held to any higher obligation than those people*” The language of the request is, “I ask your Honor to charge the jury that in determining the negligence of the city or the city’s driver it is not what the butcher or the baker would do under ordinary circumstances, or an ordinarily prudent man,” and then follows the said proposition as to prima facie evidence of negligence. ” Of course, the negligence was not to be determined by what the butcher or the baker would do, but was it not to be determined by what an “ordinarily prudent man” would do under ordinary circumstances ? It is plain enough that the clause “ under ordinary circumstances ” may be also referred to the “ ordinarily prudent man ” as well as to the butcher and the baker. Our Court of Appeals has said of “negligence as used in the law”: “But no definition has yet been given, and it is obvious that none can be given, accurate and comprehensive enough to apply to the varying facts and circumstances of every case.” Grover, J., writing for the court in Mangam v. Brooklyn R. R. Co. (38 N. Y. 457), said: “Legal negligence is the omission of such care as persons of ordinary prudence exercise and deem adequate to the circumstances of the case.” Let us test the matter by inquiring whether, the court could have rightly refused as erroneous in law a request that the negligence of the city or the city’s driver was to be determined by what an ordinarily prudent man would do under ordinary circumstances? As the criterion named was the “ordinarily prudent man,” it was not essential to qualify him again by the phrase “ as exercising ordinary prudence” or “in the exercise of due care ” or the like, for the man to he considered is of that status perforce of the qualification already made. The further statement of the court was not erroneous. The court did not assume to comment upon prima facie evidence of negligence. It said that the element of leaving a horse on the highway unattended required submission of the case to the jury to determine as matter of fact whether it was negligence, and further said that the jury could find negligence if it concluded that this act of leaving the horse unattended was not that of an ordinarily prudent person.

It is contended that the exception was well taken to the refusal of the following request: “I ask your Honor to charge also,, your Honor did in substance, but to specifically charge, that if they find that the leaving of the horse unattended and unfastened upon" the highway by the driver was the proximate cause and the sole cause of this injury that their verdict must be for the plaintiff.” But the leaving of the horse unattended and unfastened upon the highway by the driver might be the proximate cause and the sole cause of the injury, and still the verdict not necessarily be “for the plaintiff,” inasmuch as the jury might acquit the defendant of negligence in leaving the horse unattended and unfastened, or might find or impute contributory negligence.

It is also insisted that the court erred in refusing to permit plaintiff’s counsel to ask the witness Midwinter, the driver, “Now, what was the occasion of your stopping at Bamouses. once a week ? ” Midwinter had testified that on this occasion he had left his horse and cart and had gone into the water closet on the ground floor of the house wherein Bamous lived. Before this question was asked, he had testified on the cross-examination that he had known Bamous for “quite a few "years; ” that he had stopped at this house two or three times a week, each time for four or five minutes; that he had done this only one day or only one week — for that one week he had worked in that quarter of the borough, and that he had not stopped there for over eight months. His attention was called to his testimony on this sub j ect on a previous trial. It is argued that if the question had been allowed, the jury might have inferred from his answer that his errand on the day of the accident was for a like purpose, whatever it may have been. Even so, the inquiry was not addressed to any fact in issue or to any relevant fact. The witness had admitted his absence in this house on the day in question and had given the reason therefor. The inquiry indicated by the question was not directed to his reason for that absence, but simply to his reasons for other absences. The argument is founded on pure speculation. Cross-examination is a matter of right when directed to “facts in issue or relevant facts,” but when its object is to ascertain the accuracy or credibility of a witness, its extent rests within the sound discretion of the trial judge. (Langley v. Wadsworth, 99 N. Y. 61, 63.) The check of the cross-examination upon this subject was not beyond the discretionary power of the trial court. (See White v. McLean, 57 N. Y. 670.)

The judgment and order must be affirmed, with costs.

Present — Jerks, P. J., Burr, Thomas, Carr and Woodward, JJ.

Judgment and order unanimously affirmed, with costs.  