
    Michael Lyons, Respondent, v. William A. Avis and Others, Appellants.
    
      Negligence — proper chrn'ge by the court as to the vigilance required of one mixing mortar in a public street.
    
    Upon the trial of an action brought to recover damages resulting from injuries caused by the alleged negligence of the defendants, it appeared that the plaintiff, while upon a public street in the city of New York, engaged in mixing moitar for a contractor having the right to have building materials thereon, was run over by a truck belonging to the defendants. The defendants requested the court to charge that “it is the duty of one using the street, for the purpose of mixing mortar or filling the same into a hod, to use diligence 
      in avoiding danger, especially in looking out for teams, and if the jury believe, from the evidence, that the plaintiff did not use such diligence, and hy reason ■whereof met with this accident, he cannot recover.” The court declined so to charge.
    
      JXelcl, that the request was a correct statement of the law, and that the defendants were entitled to the charge requested;
    “That it was not enough that the court, in its charge, had spoken in a general way of the vigilance required of a person who was upon the roadway.
    Appeal by the defendants, William A. Avis and others, from a judgment of the Court of Common Pleas for the city and county of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 4th day of December, 1895, upon the verdict of a jury rendered after a trial at a Trial Term of said court, and also from an order entered in said clerk’s office on the 20th day of December, 1895, denying the defendants’ motion for a new trial made upon the minutes.
    The action was brought to recover damages resulting from personal injuries alleged to have been caused by the negligence of the defendants.
    
      Henry B. Twombly, for the appellants.
    
      Thomas P. Wickes, for the respondent.
   Barrett, J.:

This was, as the learned trial judge observed in his charge, peculiarly a case for the jury. The plaintiff was injured by the defendants’ truck while he was occupied in mixing mortar upon the liighway in front of 223 Madison street, in this city. He was a laborer employed by one Harlow, who had the contract for plastering a building which was being erected at tbe above number. Harlow had a pile of mortar there upon the street, and the plaintiff says he was stooping down in the act of filling his hod when he was run over by the defendants’ truck. We entirely disagree with the appellants in their view of the facts. The plaintiff’s story, fortified "by that of his fellow-laborer, Higgins, was sufficient to take the case to the jury. Their story was denied hy the defendants’ witnesses, Put the conflict raised a fair question as to the negligence of the defendants’ driver, and also as to the plaintiff’s freedom from negligence. The plaintiff’s employment was lawful. Harlow was authorized, under his permit, to place material upon the street, and the plaintiff had a right to obey his employer’s orders with respect thereto. It may be that there was no authority upon Harlow’s part to utilize the street for the mixing of mortar. The permit did not, perhaps, cover such a use. But the plaintiff was, nevertheless, under the protection of the law and could not be run over with impunity. We entirely dissent from the proposition that, because of his presence in the vicinity of this .pile of mortar, he was guilty of contributory negligence as matter of law. What may properly be held is that, under the circumstances, he was bound to be duly vigilant for his own protection. His situation was not like that of an ordinary pedestrian upon a city sidewalk, or even of a person crossing- a street. He was utilizing the highway for a purpose foreign to its ordinary use, a purpose which is specially permitted only because of exceptional business needs. But the use was necessarily fraught with danger. It called for vigilance corresponding to the exigencies of the situation. No man should deliberately place himself in a position where horses and vehicles are constantly passing and repassing without being mindful of his surroundings. The question whether the plaintiff was guilty of contributory negligence, therefore, involved the consideration of his acts with regard to his special surroundings at the time of the injury. It was to emphasize the necessity for vigilance commensurate to the situation that the defendants requested the learned trial judge to charge the following proposition:

" III. It is the duty of one using the street for the purpose of mixing mortar, or filling the same into a hod, to use diligence in avoiding danger, especially in looking out for teams, and if the jury believe from the evidence that the plaintiff did not use such diligence, and by reason whereof met with this accident, he cannot recover from this defendant.”

The learned judge declined to charge the proposition, and the defendants excepted. We think this was error. The language of the request seems to us to be a correct condensation of the true rule applicable to the circumstances. We have searched diligently for a satisfactory answer to this assignment of error, but we find none. The respondent, indeed, does not deny the accuracy of the rule embodied in the request. He seeks to cure the error by the suggestion that the learned court had already charged the proposition in other language, and that the request was, therefore, repetitious. It was not declined upon any such ground, and the context indicates that it was declined because it was not deemed accurate. If, however, it was covered by any other part of the charge, it was not error to decline to repeat it in another form. "We have examined the charge with care, but we fail to find any language which can be deemed the full equivalent of this proposition. There was a statement of a general character that it was the plaintiff’s duty to exercise ordinary and reasonable care, and to use his eyes and ears, and to exercise all the faculties which he possessed in view of his age and intelligence. This was well enough, but it was somewhat vague and general as applied to the plaintiff’s surroundings. We cannot say that it was all-sufficient, and that a proposition which applied the general rule to the special facts of the case was repetitious. On the contrary, we think that a.charge of a stereotyped character as to contributory negligence in general hardly met the needs of the case. It could not have clearly impressed upon the jury the precise question which they were called upon to determine. That question, as we have already pointed out, was whether the plaintiff’s vigilance was commensurate with the requirements of his surroundings. It was that particular feature of the case to which the proposition above quoted was pointedly addressed. We think it was proper to call the attention of the jury to the plaintiff’s surroundings in connection with the instruction as to contributory negligence, and to apply the rule to those surroundings. It will not do in all cases to confine instructions to a general statement that the plaintiff must establish the defendant’s negligence and his own freedom therefrom. Such a charge is not always helpful to a jury, nor does it clarify the precise question before them. We have but little regard for subtle and involved requests Avliich tend only to mislead or confuse. But, although requests are sometimes abused, they frequently serve a good purpose, when the ground has not already been covered by the charge, in putting the real question in concrete form. Thus it was here. The learned judge in his colloquial charge dealt AAÚth a mere statement of the general rule of law. He followed that by charging, at the plaintiff’s request, certain specific propositions applicable to his situation and favorable to his contention, such, for instance, as that the jury were not justified in inferring negligence from the mere fact that he was upon the roadway, and, further, that a footman has a right to be in a public street, either for the purpose of crossing it or for any other lawful purpose. Surely, after this, it was proper to tell the jury that there was something more in the case than the mere fact that the plaintiff was upon the roadway and that he had a right to be there for a lawful purpose. It was justly essential to supplement this by the further statement that the plaintiff was upon the roadway for business purposes, and that these purposes certainly called for diligence in avoiding danger and especially in looking out for teams. It is impossible to say that the charge covered this proposition either in terms or substantially. On the contrary, when the entire charge is considered, it is apparent that the case went to the jury upon, a false notion that the plaintiff’s right to be where he was diminished the extent of the vigilance properly required of him and the necessity for its due exercise. It should have been put the other way, namely, that, being where he was, the plaintiff’s vigilance should have been increased, not diminished. The vigilance should certainly have been adequate to his position of danger. We think, therefore, that the proposition under consideration should have been charged, and that its refusal was distinctly prejudicial to the defendants.

The judgment and order appealed from should, therefore, be reversed and a new trial ordered, with costs to the appellants to abide the event.

Van Brunt, P. J., Rumsey, O’Brien and Ingraham, JJ., concurred.

Judgment and order reversed and new trial ordered, with costs to appellants to abide event.  