
    Domenico Fiori, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Negligence — a charge that if the jury ‘ ‘ are fully satisfied upon all of the evidence that the injury occurred as the plaintiff alleges, then he has sustained the burden cast upon him,” held to be erroneous.
    
    The evidence given on the trial of an action to recover damages for personal injuries sustained by the plaintiff, in consequence of being struck by one of the defendant’s electric street cars, was conflicting and the court, when submitting the case to the jury, charged, “The plaintiff’s evidence is to the effect that as he was about to cross the street at the corner of Grand and Mott streets a car was upon the westerly crossing or approaching the crossing that he was about to make; that the car was going slow, or not fast; that the motorman motioned with his hand, indicating that the plaintiff could cross in safety and that thereupon he attempted to cross when the car came up rapidly and struck him and he was thrown to the street and injured. If the accident occurred in that way it was a negligent act of the motorman and it did not occur through the negligence of the plaintiff, because when the motorman indicated, and the car was not going fast, that it was safe for him to cross, the plaintiff had a right to attempt to cross the street in front of the car. Now the evidence of the witnesses for the defendant is diametrically opposed to that. * s * If you are fully satisfied upon all of the evidence that the injury occurred as the plaintiff alleges, then he has sustained the burden cast upon him."
    
      Held, that the charge was improper and required the reversal of a judgment entered upon a verdict in favor of the plaintiff, for the reason that, upon the evidence adduced by the plaintiff, standing alone, the question whether the defendant was negligent and whether the plaintiff was free from contributory negligence was one of fact for the jury to determine, whereas the court took that question away from the jury by directing them, if they found the evidence in question to be true, to find for the plaintiff.
    Patterson, J., dissented.
    Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Flew York on the 17th day of February, 1904, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 18th day of February, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles F. Brown, for the appellant.
    
      Maurice Simmons, for the respondent.
   O’Brieit, J.:

The action was brought to recover for injuries received by the plaintiff while walking across Grand street at Mott street on the evening of June 17, 1901, by being struck by one of defendant’s electric cars through the alleged negligence of the motonnan.

Upon conflicting evidence as to the manner in which the accident occurred, the case was submitted to the jury and in its charge the court said : “ The plaintiff’s evidence is to the effect that as he was about to cross the street at the corner of Grand and Mott streets a car was upon the westerly crossing or approaching the crossing that he was about to make; that the car was going slow, or not fast; that the motorman motioned with his hand indicating that the plaintiff could cross in safety and that thereupon he attempted to cross when the car came up rapidly and struck him and he was thrown to the street and injured. If the accident occurred in that way it was a negligent act of the motorman and it did not occur through the negligence of the plaintiff, because when the motorman indicated, and the car was not going fast, that it was safe for him to cross, the plaintiff had a right to attempt to cross the street in front of the car. Now the evidence of the witnesses for the defendant is diametrically opposed to that. * * * If you are fully satisfied upon all of the evidence that the injury occurred as the plaintiff alleges, then he has sustained the burden cast upon him.” Thereafter the defendant’s attorney excepted to the charge as follows: I except to that portion of your honor’s chaz-ge wherein you stated that if the accident happened as claimed by the plaintiff, as stated by the plaintiff’s witnesses, that then the defendant was negligent and the plaintiff free from negligence.”

Unless it appears as matter of law from the uncontz-adieted evidence that a jzlaintiff is free from contributory negligence and that the defendant is guilty of negligence, a charge that the jui’y, if they believe the plaintiff’s witnesses, should find a verdict in his favor, is cri'oneous and constitutes ground for a reversal. The crucial question is always whether or not the facts presented do or do not constitute negligence, and to charge in a case where the evidence is conflicting or where as matter of law it cannot be said that negligence exists, that, if certain witnesses are believed, a verdict must be found for the party in whose behalf such witnesses testify, is to remove from the jury the question of fact which it is their province to decide and leaves to them simply the question as to the credibility of such witnesses. In addition to whether witnesses are to be believed, the jury must determine whether or not upon the facts negligence is or is not to be inferred. Here the court charged that if the jury believed the testimony of the plaintiff’s witnesses, then the conduct of the motorman was a negligent act. In this way the court instead of leaving it to the jury to say whether or not such conduct was negligent, took the question away from them by characterizing it as negligent. Similarly the plaintiff’s conduct, as testified by his witness, was characterized by the court as far from contributory negligence. Apart from the defendant’s testimony which raised a conflict as to these matters, and upon the evidence adduced by plaintiff standing alone, it was for the jury to say whether it was negligence on the part of the motorman to invite the plaintiff to cross and thereafter send the car forward and whether the plaintiff, in proceeding under such circumstances with the car at the distance stated, was or was not free from contributory negligence. Yet upon these vital questions, the jury were by the charge directed to find for the plaintiff if they believed his witnesses.

Such a charge has repeatedly been held bad, and in the recent case of Goodkind v. Metropolitan St. Ry. Co. (93 App. Div. 153) this court said : Where the liability of a defendant is based upon negligence, to establish such liability the jury must find that the injury was caused by the negligence of the defendant and it is error for the court to charge as a matter of law that if the facts are as testified to by the plaintiff’s witness, the plaintiff is entitled to a verdict. * In such a direction the jury are charged as a matter of law that the facts stated constitute negligence, instead of leaving the question as to whether there was negligence for the jury to determine.” This principle was applied in the case of Kellegher v. Forty-second St., etc., R. R. Co. (171 N. Y. 309) wherein it was held, as correctly stated in the syllabus, that “ Upon the trial of an action for negligence an instruction that if the jury believed the witnesses called by the plaintiff the act of a conductor in starting a car was negligent and constituted a cause of action in favor of the plaintiff, constitutes reversible error, because it submits to the jury only the question of the credibility of his witnesses and practically withdraws from its consideration the questions of defendant’s negligence and of the plaintiff’s contributory negligence which should have been submitted even if the evidence given by the plaintiff was to be believed.” And in Thomson v. Seaman (67 App. Div. 58), where the charge was that “ if the story of the defendants’ witnesses be true, that the accident happened as they say it did, and not as the plaintiff’s witnesses say it did, your verdict must be for the defendants” the court said: “ This charge can only be sustained if the testimony of the witnesses called by the defendants, if believed by the jury and the other evidence in the case not in conflict therewith, established as matter of law,” that the plaintiff was guilty of contributory negligence or the defendants free from negligence.

We have not overlooked the cases of Kleiner v. Third Ave. R. R. Co. (162 N. Y. 193), and McDonald v. Long Island R. R. Co. (116 id. 546), in which it was held that the court may properly charge the jury that if they find a certain condition to exist, they may infer negligence and liability of the defendant. Here, however, the court, after stating the plaintiff’s testimony, said: “ If the accident occurred in that way it was a negligent act of the motorman and it did not occur through the negligence of the plaintiff,” and thus the jury were not permitted to infer negligence or freedom from contributory negligence, but were charged that under the circumstances narrated by plaintiff’s witnesses if believed, .lie sustained the burden cast upon him.” In the Kleiner Case (supra) it was held (head note) that “ It is not error for the trial court to charge, in such an action, that if' the jury believe that the accident happened in the manner described by the defendant’s witnesses their verdict must be for the defendant, and if they believe it occurred in the manner described by the plaintiff and her witnesses, she is entitled to recover, since it leaves to the jury the determination of all the facts.”

And in the McDonald Case (supra) the court left it for the jury “ to say whether it would not be negligence if he started to get off the train while in motion,” and, furthermore, upon appeal, it was held (head note) that “ plaintiff’s testimony, if taken as true, furnished all the facts requisite to establish defendant’s liability and no countervailing deductions could reasonably arise, and that, therefore, a charge of the court that if the jury believed the testimony on the part of the plaintiff he was entitled to recover, was not error.”

These two cases are thus distinguishable from the present case, and it may be added that, even if they were not, they must be regarded as overruled by the later cases to which we have made reference and in which the precise question here involved was passed upon.

In the ease at bar the exception of the defendant to the charge called the attention of the court to the error made, and it follows from the authorities from which we have quoted that the exception must be sustained. In a case such as this, where the evidence was conflicting and wherein the statements of the plaintiff’s witnesses still left a question open for the jury as to whether the motorman was negligent in proceeding with a car after seeing the plaintiff, and the plaintiff free from negligence in attempting to cross when ho was aware of the proximity of the car, the error committed of taking that question away from the jury requires a reversal of the judgment.

Judgment and order accordingly reversed anda new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., Hatch and Laughlin, JJ., concurred; Patterson, J., dissented.

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