
    Henry T. Newman, Respondent, v. New York and Queens County Railway Company, Appellant.
    Second Department,
    June 5, 1908.
    ' Railroad — negligence — right of way — charge.
    Where the court has pointed out the conflicting theories and the evidence in support of them and told the jury it was for them to determine which theory they would accept, a further charge that if they believed plaintiff’s witnesses they were at liberty to render a verdict in his favor, is not erroneous on the ground that it limits the jury to a determination of the credibility of plaintiff's . witnesses.
    
      It is not error to refuse to charge thatibetween blocks a railroad company has a paramount right of way “ on all and every portion of the street except at the ad joinings.”
    A party who has received as broad an instruction as is justified has no ground for complaint.
    Appeal by the defendant, the New York and Queens County Bail way Company, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the plaintiff, rendered on the 28th day of October, 1907.
    
      Anthony J. Ernest, for the appellant.
    
      George F. Hickey [M. P. O’ Connor with him on the' brief], for the respondent.
   Woodward, J.:

The plaintiff seeks to recover for personal injuries, alleged to have been sustained while a passenger upon one of the cars of the defendant, by reason of the car colliding with a truck which attempted to pass in upon the tracks of the defendant in front of the approaching car. A verdict was rendered for the plaintiff, the defendant appealing, urging three exceptions. The first of these is that the learned trial court erred in its charge to the jury ; the second, that the court erred in rulings upon the evidence, and the third, that the verdict is against the weight of the evidence.

The first alleged errdr in the charge is presented as follows: “ If you find, I repeat once more,-he was injured as he says, and yon believe his testimony and the witnesses on the part of the plaintiff, your verdict will be rendered accordingly in such sum as yon believe to be fair and just and proper between the plaintiff and defendant in this case.” Mr. Smith, on behalf of the defendant: “ I respectfully except to that last portion of your honor’s charge in which you said ‘he was injured as he says and you believe his testimony and the witnesses on the part of the plaintiff, your verdict will be rendered accordingly,’ ” etc. To this the court responded : “ They are at liberty to find,” and counsel took no exception. Assuming there is a question raised, we are of opinion that this charge, taken in connection with the prior portions of the charge, to which it distinctly refers, left no erroneous impression in the minds of the jury. The court had pointed out in detail the conflicting theories and the evidence in support of them, and had told the jury it was for them to determine which theory they would accept, and the clause referred to is clearly to he understood, not as limiting the jury to the determination of the credibility of the plaintiff’s witnesses, but as a recapitulation of the previous charge, and that if they believed the plaintiff’s witnesses, as against those of the defendant, they were to find for the plaintiff. It was not error, read in connection, with all the court had said.

The next alleged error is presented by Mr. Smith’s request to charge “ that between blocks the railroad has a paramount right of way on all and every portion of the streets except at the adjoinings (streets) and the motorman had a right to. believe that the truck would remain clear of his track and wasn’t obliged to anticipate the truck driver would pull in on his track.” This the court refused to charge, for the very obvious reason that it does not correctly state the law, assuming’ it to have any bearing upon a case in which a passenger- upon the car is injured. The railroad company between streets has not “ a paramount right of way on all and every portion of the streets,” with the exception noted ; it has a paramount right upon its tracks, and. for a sufficient space for the cars to pass, but outside of that it has no more rights than any other person lawfully using the highway. Mr. Smith then continued: “ And it is his duty to stop the car only at the.time he saw the driver-going to go to his track.” The court responded-: “Charge the latter part.” Without-approving this proposition it is obvious that the defendant received as broad an instruction as there' was any possible justification for. The duty of the motorman is not necessarily measured by the time he saw the truck moving on to his track; his duty was to see it moving as soon as he could do so in the exercise of that degree of care which the law exacts for the carrying of passengers, and the defendant certainly has no-grounds for complaint under the charge as it remained when the case went to the jury.

. We have examined the other alleged errors, but find none which would warrant this court in interfering with the verdict of the jury.

The judgment appealed from should' be affirmed, with costs.

Jenks, G-aynoe, Rich and Miller, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs.  