
    David T. Jones, Respondent, v. The Third Avenue R. R. Co., Appellant.
    (Supreme Court, Appellate Term,
    February, 1901.)
    negligence — Incorrect charge as to conduct of parties in a collision.
    Where, upon the trial of an action brought by the owner of a cab against a corporation with whose motor car he collided, the court, in response to a request of the defendant to charge that it is entitled to a verdict if its motorman acted with the care of an ordinarily prudent person, says, "If the plaintiff was prudent and did all a man could do, and the accident occurred, it was the defendant’s fault ”, there must be a new trial, as the jury have been instructed that, if the plaintiff was prudent, the defendant was negligent as matter of law, no matter what may have been the conduct of its motorman.
    Appeal from a judgment of the Municipal Court of the city of Kew York, seventh district, borough of Manhattan, in favor of the plaintiff.
    Hoadly, Lauterbach & Johnson, for appellant.
    L. A. Spalding, for respondent.
   Blanchard, J.

This is an action brought to recover damages for injuries to a cab owned and driven by plaintiff, claimed to have been sustained by collision with one of defendant’s cars, through defendant’s negligence. The trial was had with the aid of a jury. At the close of the charge of the trial justice, defendant requested the court to charge as follows:

That the gripman of the defendant, or motorman, was held to the exercise of ordinary care only, and if they believe he acted with the care of an ordinarily prudent person under the circumstances, the verdict must be for the defendant.” In response to this the court charged as follows: “ If th.e plaintiff was prudent and did all a man could do, and the accident occurred it was the defendant’s fault. If the defendant’s servant was prudent and it occurred, it was the plaintiff’s fault,” to which defendant duly excepted. The first sentence of the proposition charged is clearly an error, • and affecting as it does the vital point at issue, must result in the reversal of the judgment. It was in effect a direction to the jury to find for plaintiff, if they found plaintiff was prudent, that as a matter of law, defendant was negligent, irrespective of the conduct of defendant’s motorman. Other errors are assigned, which it does not become necessary to consider.

The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Andrews, P. J., and O’Gorman, J., concur.

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