
    Frank Wilbrand, Plaintiff and Respondent, v. The Eighth Avenue Railroad Company, Defendants and Appellants.
    1. Where a city railroad company, by authority of the corporation of Hew York, and with the sanction of the Legislature, has constructed a , railroad, and is running cars thereon through the streets of the city, the public have nevertheless the right to drive upon and across their track; but 1. not so as to interfere with the proper business of the company.
    2. If an individual sees fit to run his carriage or wagon upon the rails, he is bound to exercise more care and diligence and keep a better look-out, than he would be if he was not upon the track, to avoid collision.
    3. The company is entitled to the unrestricted use of its rails for the progress of its cars, within that limit of speed which the law allows them, and the driver of any other vehicle, being unnecessarily on the track, is bound to exercise greater care, than if upon the common pavement, to see that an approaching car is not impeded, and if through negligence or willfulness in this respect, a collision ensues, he should not have damages against the company, even though the servants of the latter are also in fault.
    (Before Hoffman, Slosson and Pierrepont, J. J.)
    Heard, April 9th;
    decided, July 3d, 1858.
    This cause came on to be heard at General Term, upon an appeal from the judgment rendered for the plaintiff, on a verdict had on the trial before Mr. "Justice Bosworth and a jury, on the 20th day of October, 1857.
    The defendants are a corporation, who are engaged in carrying passengers on a railroad, constructed through certain streets and the Eighth avenue, in the city of Hew York, under the grant of a privilege for that purpose, obtained from the corporation of Hew York and the further authority of the Legislature sanctioning the same.
    The action is brought to recover damages for the alleged negligence of the defendants’ servants, in driving the horses and car of the defendants, while the plaintiff was traveling with his horse and wagon through the Eighth avenue, by reason of which negligence the pole of the car was driven with violence against the plaintiff, and against his wagon, so that the plaintiff suf- ■ fered great bodily" injury and his wagon was broken, &c.
    The answer denied the plaintiff’s allegations, and charged the accident, if any, and its consequences to the plaintiff’s own reckless carelessness and fault.
    The plaintiff testified that he drove through one of the intersecting streets to the Eighth avenue and turned up that avenue, driving upon the railroad track, immediately behind a long lumber wagon which was going up the avenue on the track of the railroad; that he saw no car coming up the avenue; that he did not look; that he could have seen the car coming if he had looked; that he drove as close behind the lumber wagon “ as the pole of his wagon would let him;” that he was driving at the rate of at least five miles an hour when, after passing a few streets, the lumber wagon turned off to the right; this stopped his progress, and he also turned to go off to the right; just at this time he heard some one cry out “halloo” and then the tongue of a car which was behind him on the track (but had not been seen by him) struck the seat of his wagon, threw him out and broke the wagon; that the reason the pole so hit the wagon-seat was that in the endeavor of the driver of the car to stop his car, when he paused to turn, the pole of the car was thrown upwards and hit his wagon; that if the lumber wagon had not been there he should not have been hit; and if the lumber wagon had continued up the avenue the car would not have hit him; that after he heard the halloo he had not time to drive a foot; that he commenced turning his wagon when he heard the halloo, but the hindwheels were on the track. It was admitted that the Eighth avenue is 100 feet wide, and that the carriageway on each side of the railroad track is twenty feet wide; and there was no evidence that the car was driven faster than the usual and legal rate of speed.
    The defendants moved for a dismissal of the complaint upon the grounds (among others): 1st. That there was no evidence of negligence on the part of the defendants; and, 2d. That the plaintiff was himself in fault, and the injury was caused by his own negligence.
    The motion was denied, and the defendants excepted.
    After the cause had been summed up by the respective counsel, the Judge charged the jury, among other things, as follows:
    “ The fact that the plaintiff was driving on the railroad tracks of the defendants, was not such a wrong or fault on his part as will prevent his recovering in this action, if he was injured by the carelessness or negligence of the driver of the car, without any negligence on the part of the plaintiff, which contributed to produce the injury.
    “ If an injury is produced by the concurring negligence of the party injured, and of a third person, the one who is injured cannot recover.
    “It was the plaintiff’s duty to turn off the track, so as not to interfere with the cars making their trips, or making them within the time required by the articles which prescribe how often they shall be run.
    “ But if the driver of the car should see a cart on the track, and that the driver of the cart did not mean to turn off, the driver of the car would have no right to run deliberately into or against the cart. For such improper conduct of a person on the track, other redress should be sought.
    “ If there was negligence in the plaintiff in the management of his wagon in turning off the track which contributed to the collision, and if there would have been no collision had there been no carelessness in that respect on his part, then he cannot recover.
    “ But if he would have been run into if he had not turned ofij and if there was no negligence in the mode of managing his cart which contributed to the injury, and if it was produced by the negligence of the driver of the car, the plaintiff may recover.
    “Although the plaintiff did not look back, and therefore did not see the car (if you shall believe that to be the fact), yet if you believe that by the exercise of ordinary care on the part of the driver of the car, either by slackening his speed or applying his brakes, there would have been no injury, the defendants would be liable, if there was no other fault on the part of the plaintiff than mere negligence in not seeing the car until it was too late to get out of its reach, so as to avoid being injured by it.”
    The Judge also instructed the jury in relation to the damages, and the rules by which they were to be governed in determining the same, in case they should find for the plaintiff.
    The defendants’ counsel then requested the said Justice to charge the jury; (among other propositions,)
    
      “ That from the fact of the plaintiff having driven his wagon upon the railroad track in front of the cars, and continuing thereon without any apparent necessity, he was bound to use more care and diligence, and keep a better look-out than he would have been if he had not been on the track, that he might avoid any collisionwhich the said Justice declined to do, on the ground that the charge as made, properly presented that matter to the jury, and the defendants’ counsel then and there excepted.
    To the charge as made, no exception was taken. The jury found a verdict in favor of the plaintiff for $250, damages. The defendants appealed from the judgment entered on the verdict.
    
      Mott & Cary, for the defendants (appellants).
    1. The question of carelessness or negligence becomes a question of law when there is no dispute about the facts, and a non-suit should be ordered when the proof, as a matter of law, is not sufficient to establish such negligence or carelessness, as to warrant a recovery against the defendants. (Terry v. The New York Central R. R. Co., 22 Barb. R., 575; Willetts v. The Buffalo and Rochester R. R. Co., 14 id., 585; Spencer v. The Utica and Schenectady R. R. Co., 5 id., 337; Brown v. Maxwell, 6 Hill R., 592; Hatfield v. Roper, 21 Wend. R., 615; Brownell v. Flagler, 5 Hill R., 282; The Tonawanda R. R. Co. v. Munger, 5 Denio R., 255, 268; 4 Comst. R., 359; Haring v. The New York and Erie R. R. Co., 13 Barb. R., 9.)
    II. The Court should have nonsuited the plaintiff on his own proof:
    1; Because there was no proof whatever to show that the defendants or their agents were guilty of carelessness, negligence or fault.
    2. The defendants were on their own track, using it in the ordinary way, as they had a right to do.
    3. The plaintiff by his -own acts caused or brought about the collision he complains of, and which caused the injury.
    III. Before the plaintiff can recover, he must establish these two propositions:
    1. That the defendants’ agents were guilty of negligence. This is charged in the complaint.
    
      2. That the plaintiff was without negligence and without fault. (Spencer v. The Utica R. R. Co., 5 Barb., 338. And see cases above cited.)
    IY. After the plaintiff had rested his case, there was nothing in the defendants’ testimony that added any strength to the plaintiff’s case. But on the other hand the defense was, as a question of law, made much stronger, and the Court should have charged the jury as a matter of law to find a verdict for the defendants; because:
    1. The railroad was made by and belonged to the defendants absolutely for the purpose and use for which it was made.
    2. The city had granted to the defendants the use of that part of the avenue and streets where the track was located, which grant was afterwards recognized and confirmed by an act of the Legislature. (§ 3, chap. 140, Laws of 1854.)
    3. The defendants afterwards organized under the General Railroad Act. That the grant of the city and the acts of the Legislature have given the defendants all the power and rights of railroad companies.
    4. The corporation had a right to grant the use of so much of the street for railroad purposes. (Drake v. Hudson River R. R. Co., 7 Barb. R., 508.)
    5. Having such right vested in them, any other use of the track would be an infringement and an usurpation, and consequently the plaintiff was, under the circumstances, on the track without right; and the injury he received not being caused by any willful or intentional act of the defendants or their agents, or by any gross carelessness on their part, the judgment ought not to be sustained. (Lane v. Cranbee, 12 Pick. R., 177; 11 East. R., 61; 6 Cow. R., 191; 2 Pick. R., 621; Pluckwell v. Wilson, 5 Carr. and Payne, 375.)
    Y. The Judge erred in not charging the jury as requested by defendants’ counsel in each request.
    The requests of the defendants’ counsel were in every respect in accordance with the well-settled principles of law; and if the Judge had so charged the jury, the verdict would have been for the defendants.
    
      Chauncey Shaffer, for the plaintiff and respondent.
    
      I. The nonsuit was properly refused, because a clear case of negligence was made out against the defendants; and for the further reason, that if there was any doubt upon the subject, the whole matter was a question of fact for the jury. (7 Cow. R., 202; 4 Wend., 423; 7 Barb., 271.)
    II. The exceptions taken to the refusal of the Judge to charge are not well taken, because the Judge had already clearly and explicitly charged on those requests, so far as the law would permit him to charge, in favor of the defendants. (See the case of Williamson v. The New York Central Railroad, decided at the November Term of the Court of Appeals, November Term, 1857. See also Heegan v. The Eighth Avenue Railroad Company, 15 N. Y. R., 380.)
    The Court of Appeals have also decided (not officially reported,) that it is not negligence per se to drive a team oh a city railroad, where the cars are propelled by horse-power. (Heegan v. The Eighth Avenue Railroad Company, supra.)
    
   By the Court.

Slosson, J.

—We are inclined to think, that the motion for a nonsuit might properly have been granted, as the evidence introduced to show negligence on the part of the defendants was very faint, and probably was quite as pertinent to establish negligence on the part of the plaintiff, as of the defendants.

But however this may be, we think the Court should have charged the first proposition, submitted by the defendants’ counsel.

The Judge had charged, that if the plaintiff was not guilty of any greater negligence, than in not seeing the car until too late to avoid the collision, still if the driver of the car, in the exercise of ordinary care, by slackening his speed or applying his brakes, could have prevented it, the defendants would be liable.

The defendants’ counsel then requested the Court to charge, that from the fact of the plaintiff having driven his wagon upon the railroad track in front of the cars, and continuing thereon without any apparent necessity, he was bound to use more care and diligence, and keep a better look-out, than he would have been if he had not been on the track, that he might avoid any collision, which proposition the Judge declined to charge on the ground that the charge as already made properly presented that matter to the jury.

The charge as made, was that it was not negligence in the plaintiff, which would excuse the defendants, that the plaintiff did not see the car in time, the proposition which the defendants’ counsel requested the J udge to charge was, that from the unnecessary and voluntary position in which the plaintiff had placed himself upon the defendants’ track, he was bound to keep a better look-out, than if he had not been on the track. If this proposition is correct, and if the plaintiff’s not seeing the car in time, was in consequence of his not keeping a proper look-out, then it is apparent that the charge was wrong, or that the proposition requested, should have been also charged.

We think the proposition embodied in the request is a sound one. The public have a right, undoubtedly, to drive upon and across the track, but not so as to interfere with the proper business of the company, and if an individual sees fit to run his carriage or wagon upon the rails, he is bound to exercise more care than he would in driving upon the common pavement to avoid collision. Other vehicles may turn out to avoid him, coming or going either way, but a car can turn neither to the right nor left, and if the rule contended for by defendants’ counsel be not true, and if the charge of the Judge be correct, then if the driver of a vehicle sees fit to place himself in front of a car in motion, and willfully to slacken his own speed so as to delay the car, and impede its progress, and restrict its speed within the time allowed by law, he could recover damages in case of a collision, if the driver of the car, in the exercise of ordinary care, either by retarding his own speed or by applying his brakes, could have prevented the injury.

We think such a rule would place our city railroad companies at the mercy of every obstinate or reckless driver in the town, and would lead to disturbances and collisions innumerable.

The true rule is, that the company is entitled to the unrestricted use of its rails, for the progress of its cars, within that limit of speed which the law allows them; and that as between them and the driver of any other vehicle who may be upon their track, in front of one of their cars, the latter, being unnecessarily there, must exercise more care than he would if he were upon a common pavement, to see that an approaching car is not impeded, and if through negligence or willfulness on his part in this respect, a collision ensues, he should not have damages against the company, even if the latter are also in fault.

We cannot say that if the request had been charged the verdict would have been as it is. We think it might have been the other way, and, therefore, feel bound to direct a new trial.

Costs to abide the event.

Ordered accordingly.  