
    CURRY v. ROCHESTER RY. CO.
    (Supreme Court, General Term, Fifth Department.
    October 16, 1895.)
    Trial—Instructions—When Charge Does not Cover Request.
    In an action for injuries inflicted by defendant’s electric car, an instruction that if plaintiff, by the use of reasonable caution, could have discovered the approach of the car, he was negligent, and if he could not have seen the car he was not negligent, does not substantially cover a requested charge that, if the jury found that plaintiff stood on the track, without looking to see if the car was coming, when, had he looked, he could have seen it, he was guilty of contributory negligence as a matter of law. Ward, J., dissenting.
    Appeal from circuit court, Monroe county.
    Action by William Curry against Rochester Railway Company for damages for personal injuries received through being struck by one of defendant’s cars. From judgment entered on verdict in favor of plaintiff, and from order denying motion for new trial, made on minutes, defendant appeals. Reversed.
    Argued before LEWIS, BRADLEY, and WARD, JJ.
    Charles J. Bissell, for appellant..
    Chamberlain & Page, for respondent.
   BRADLEY, J.

On July 25, 1893, the plaintiff was struck and injured by an electric street car of the defendant going westerly on West avenue in the city of Rochester. There were two tracks of the company in that street. The outer rails of the tracks were 12.4 feet from the curb. On the northerly track were run the westerly-bound cars, and on the other the cars ran easterly. The plaintiff was proceeding to cross the street from the north side when he received his injury. This took place about 8 o’clock p. m. The attendant circumstances under which it occurred were the subject of some conflict in the evidence. On the part of the plaintiff there is evidence tending to prove that the car by which the plaintiff was struck was preceded by another, going west, but a few feet from it, and that when he stepped onto the track in the rear of the first one he was struck by the other. There is also evidence to the effect that he stopped upon the track, and stood there, looking westerly, when the accident occurred; and there is also evidence tending to prove, and permitting the inference, that no car gonig either way passed there from the time the plaintiff left the sidewalk until the arrival of the car by which he was injured. The court, having charged the jury, was requested by the defendant’s counsel to further charge them that, if they found that after the plaintiff left the sidewalk, and started to cross the street, only one car passed “to the west, and that was the car that injured him, and they found that he stopped on the track in front of that car without looking; that, had he looked, he could have seen it coming, and he was, by reason of his omission to look, knocked down and injured,—that that conduct was contributory negligence, as matter of law, which bars a recovery.” In response to the request the court said: “I charge you, if by the exercise of reasonable care and caution he could have discovered the car, then he was negligent. If by the exercise of rea- x sonable care and caution he could not have seen the car, then he was not guilty of contributory negligence.” Thereupon the defendant’s counsel excepted to the refusal to charge as requested and to the modification. The charge following the request did not substantially cover the proposition, nor did the charge as then already made do so. There was evidence which permitted the jury to find all the facts included in the proposition which the court was so requested to charge; and, if they had so found the facts, the conclusion that the defendant was not entitled to recover would neces: sarily follow. The refusal to so charge was error. Thompson v. Railway Co., 145 N. Y. 196, 39 N. E. 709.

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

LEWIS, J., concurs. WARD, J., dissents.  