
    Salomon Strauss, as Administrator, etc., of Pauline Moses, Deceased, Appellant, v. The Newburgh Electric Railway Company, Respondent.
    
      Negligence—that of the driver not imputed to one riding in a carriage Toy imitation — speed of am electric car — condition of a wagon and street after a collision.
    
    In an action brought to recover damages resulting from the death of the plaintiff’s intestate, caused by the alleged negligence of the defendant, it appeared that the deceased with her two daughters was, at the invitation of one Pfeiffer, riding along Bridge street in the city of Newburgh, on which the defendant operated an electric' railroad; that, as a car approached, Pfeiffer, the driver, lost control of his horse, which grew uneasy and backed the wagon upon the track, and when the car Was from fifty to seventy'feet distant the driver and other-people shouted to the motorman to stop the car, but the warning proved unavailing, as the car struck the wagon, tore it loose from the horse and ran a distance of from forty to seventy feet before it stopped. The occupants of the wagon were thrown out and the plaintiff’s intestate received injuries from which she died. 1
    
      The motorman testified that when he first saw the wagon it was about 150 feet away and that his car was running at the rate of four miles an hour. Testimony was given that a car running at that rate could have been stopped, under the existing conditions, within from six to eight feet, and with an ordinary brake within ten feet.
    
      Hdd, that the question of the negligence of the defendant should have, been submitted to the jury;
    That the intestate, being present as a guest of Pfeiffer and having no control or management over the vehicle, was not chargeable with his negligence if there was any on his part;
    That whether the intestate omitted any duty of caring for herself was a question for the jury;
    That a witness who testified that he had timed the running of electric cars once upon another road, had noticed the speed of steam cars, had noticed horses trot and run, and that he knew their rate of speed and had made calculations, of it, was competent to testify how fast the car was going at the time of the accident;
    That the condition of the wagon after the accident and of the planks in the street and that of the ground, as to whether or not it was furrowed, might properly be testified to, as all these matters bore upon the question whether at the time of the collision the car was moving at a high or at a low rate of speed.
    Appeal by the plaintiff, Salomon Strauss, as administrator, etc., of Pauline Moses, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 27th day of April, 1896, upon a nonsuit granted by the court after a trial before the court and a jury at the Orange Circuit.
    The action was brought to recover damages resulting from the death of the plaintiff’s intestate, which was alleged to have been caused by the negligence of the defendant.
    
      Louis A. Marshall, for the appellant.
    
      Johnson & Lamb, for the respondent.
   Per Curiam :

Plaintiff’s intestate was killed on the 4th day of July, 1894, by an electric trolley car, operated by defendant, upon its tracks, located upon Bridge street in the city of Newburgh. The proof upon the part of plaintiff tended to establish the fact that deceased, with her two daughters, were seated in a vehicle drawn by one horse and driven by William Pfeiffer. The answer admitted that deceased was an occupant of the vehicle at the invitation of its driver, and the evidence was that she had no control over or voice in its management. Pfeiffer drove the horse upon Bridge street, -when he was informed by deceased that a car was approaching; he drove along the street on its right side and clear of the tracks. As the car approached, and when about seventy feet away, the horse became uneasy and stopped and backed the wagon .upon the track. Pfeiffer used his whip upon the horse and tried to get the wagon from the track, but was unable to do so. When the car was from fifty to . seventy feet away, Pfeiffer and some other people near by shouted .to the motorman to stop the car, but the warning proved unavailing. The'car struck the wagon, shattered and tore it loose from the horse, and ran a distance of from forty to seventy feet before it came to a stop. The occupants of the wagon were thrown out and plaintiff’s intestate received injuries from which she subsequently died. It was a dry, clear evening, about dusk, and when the motorman first saw the wagon he states that it was about 150 feet away, and that the horse was a little uneasy. He testified that the car was running, at the time of the'accident, four miles an hour. It was. shown, by other testimony that a car running at this rate of speed could be stopped under the existing conditions in from six to eight feet, and with an •ordinary brake within ten feet. There was considerable more testimony bearing upon the negligence of the defendant. We do not deem it necessary, however, to state more. It was clearly sufficient to require the submission of the question to the jury, and the refusal of the court so to do was error.

So far as the question of contributory negligence was concerned, if plaintiff’s intestate was chargeable with the negligence of Pfeiffer, there was evidence presented which would have supported a finding exonerating him therefrom. But his negligence was in no wise chargeable to deceased. She was there by his invitation, as his guest, and had no control ór direction over the management of the vehicle. Consequently she was not chargeable with his negligence. (Kessler v. Brooklyn Heights R. R. Co., 3 App. Div. 426.)

Whether she omitted any duty to care for herself was, under the evidence, a question for the jury. This disposes of the case.

But as there were rulings excluding evidence offered upon the trial, which we regard as erroneous, a brief discussion is necessary for future guidance. James Connell was sworn as a witness, and test!fied that he saw the car as it approached the place of the accident for a distance of from fifty to seventy-five yards. He stated that he had timed the running of electric cars once, on another road; that he had noticed the speed of steam cars; that he had noticed horses trot and run and knew the rate of speed at which they were going, and. had made calculations of their rate of speed. He was then asked : Q. Having all those things in your mind, how fast do you say this car was going at the time you saw it ? ” This was objected to, the objection was sustained and plaintiff excepted. He wag then asked to describe the speed of the car, and this was excluded. The evidence should have been received. (Salter v. Utica & B. R. R. R. Co., 59 N. Y. 631; Northrop v. N. Y., O. & W. R. Co., 37 Hun, 295 ; Scully v. N. Y., L. E. & W. R. R. Co., 80 id. 197.)

Pfeiffer as a witness was asked respecting the condition of the wagon after the collision: “ Q. "Wliat was the appearance of that axle when you saw it? ” The court excluded the testimony, saying: The appearance of the axle or .the wheels is entirely immaterial. You can’t prove what happened to the wagon in this case, because' the wagon isn’t involved. I don’t say that the wagon can’t be referred to.” Plaintiff excepted. One Grogan was called and asked respecting the condition of the wagon after the accident and also respecting' the condition of the planks in the street where the accident occurred and over which the wagon was driven by the car; also as to the condition of the ground and as to a furrow being made therein. This was excluded and exception was taken. The evidence should have been received. It bore directly upon the character and force of the collision, and the speed of the car. If the axle, which appeared to be of iron, was bent and twisted, if planks were torn up and furrows made in them and the ground, proof of these facts and of the distance to which these marks extended furnished evidence more or less conclusive of the fact whether the car came at a high or low rate of speed., with slight or great force, and it all bore upon the question of defendant’s negligence in the management and operation of the car. Besides, the question of how far the car ran after the collision was in controversy, and the marks upon the ground and planks was pertinent evidence upon that point, and, dependent upon its character, might prove practically conclusive of that question.

For these reasons the judgment should be reversed, and a new trial granted, with costs to abide the event.

All concurred.

Judgment reversed and new trial granted, with costs to abide the event. •  