
    George Koster, Respondent, v. The Coney Island and Brooklyn Railroad Company, Appellant.
    Second Department,
    December 24, 1914.
    Street railroad—negligence — collision between delivery wagon and trolley car at street crossing — when negligence of motorman in failing to stop car a question of fact —liability of company for mistake of motorman involving exercise of judgment.
    Where, in an action for personal injuries sustained as a result of a collision between a delivery wagon and one of defendant’s trolley cars at a street crossing alleged to have been caused by the negligence of defendant’s motorman in failing to stop the ear, different inferences can reasonably be drawn from the evidence as to whether the motorman exercised that degree of care which the law requires of a reasonably prudent and careful person discharging such duties, the question of defendant’s negligence is one of fact.
    
      The precise point on a down grade at which the power should be shut off and the brakes applied involves the exercise of judgment on the part of the motorman, and if in determining such question he makes a mistake in not taking into consideration the wet and slippery condition of the rails, the error is one of judgment, not necessarily constituting negligence or establishing his employer’s liability.
    Appeal by the defendant, The Coney Island and Brooklyn Railroad Company, from a judgment of the County Court of Queens county, entered in the office of the clerk of said county on the 26th day of February, 1914, upon the verdict of a jury for $700, and also from an order entered in said clerk’s office on the 24th day of February, 1914, denying the defendant’s motion for a new trial made upon the minutes.
    
      D. A. Marsh [George D. Yeomans with him on the brief], for the appellant.
    
      Martin T. Manton [ Vine H. Smith with him on the brief], for the respondent.
   Rich, J.:

This appeal is from a judgment of the County Court of Queens county in an action for personal injuries. The accident was the result of a collision between a delivery wagon and one of defendant’s trolley cars at a street crossing.

The learned trial court charged the jury that in the operation of its car the defendant was negligent as matter of law, and that if they found the plaintiff free from contributory negligence and that he was actually injured as the result of the collision he was entitled to a verdibt. To this portion of the charge an exception was taken, whereupon counsel for the plaintiff informed the court that he was willing to have the jury determine as a question of fact whether or not the motorman was careless in the operation of the car, and the court responded: “When I charge what the law is I have to charge what I understand is the law and I will stand on it.” The exception to this charge presents the only serious question before the court upon this appeal.

The accident occurred between three and four o’clock in the morning of July 18, 1913. It was wet and misty and the rails were slippery. It was contended by the plaintiff that the failure to stop the car before it collided with the wagon in which plaintiff was riding, was due to the inexperience of one of defendant’s conductors who was permitted to operate it, and the testimony of two witnesses who were passengers on the car was to the effect that at the time of the accident a conductor was running the car. This fact was denied by the conductor and motorman and by a conductor of defendant not employed on the car but who happened to be riding with the motorman on the front platform. If the jury believed the testimony of the motorman and two conductors, they would have been justified in finding that the car was being operated at the time of the collision by an experienced and regular motorman, who, in the middle of the block about 100 feet from the corner, where the downgrade commenced, shut off the power and by so doing reduced the speed of the car to four or five miles an hour; that he was vigilant and attentive and saw the plaintiff’s rig as soon as it came into his line of vision, at which time the car was about 25 feet from the building line of the intersecting street, and, immediately observing the possibility of a collision, used all the means at his command to stop the car, in which effort the employee riding on the front platform assisted by sanding the rails; that when the brake was applied the car wheels skidded because of the wetness of the rails, and the motorman, then realizing that he could not stop the car in time to avoid a collision, sounded his gong and shouted to the plaintiff to inform him that he could not' stop the car, to which plaintiff paid no attention; that the horse was then approaching the crossing on a trot, which gait he kept until he reached and was upon the track, when the fender of the car struck his legs and he was thrown sideways into it; that the motorman had physical control of his car and could and would have avoided the accident had the rails been dry, but in consequence of being wet and slippery neither the brakes nor sand stopped it in time, and that the slippery condition of the rails was the proximate cause of the accident. The precise point on the downgrade at which the power should have been shut off and brakes applied, involved the exercise of judgment on the part of the motor-. man, and if, in determining such question, he made the mistake of not taking into consideration the wet and slippery condition of the rails, it was a mistaken exercise of judgment not necessarily constituting negligence or estabhshing defendant’s liability. (Lewis v. Long Island R. R. Co., 162 N. Y. 52; Stabenau v. Atlantic Avenue R. R. Co., 155 id. 511; Bittner v. Crosstown Railway Co., 153 id. 76.) Itwas for the jury to say under the evidence whether in the operation of its car the defendant’s motorman was negligent. Different inferences could reasonably be drawn from the evidence as to whether the motorman had exercised that degree of care which the law required of a reasonably prudent and careful person discharging the duties of a motorman operating a trolley car, which made the question of defendant’s negligence one of fact for the jury, instead of one of law to be determined by the court. (Stackus v. N. Y. C. & H. R. R. R. Co., 79 N. Y. 464; Salter v. Utica & Black Biver R. R. Co., 88 id. 42, 51; Sias v. Rochester R. Co., 169 id. 118,126; Weil v. D. D., E. B. & B. R. R. Co., 119 id. 147, 153.)

The judgment and order of the County Court of Queens county must be reversed and a new trial ordered, costs to abide the event.

Jenks, P. J., Buee and Thomas, JJ., concurred; Cabe, J., not voting.

Judgment and order of the County Court of Queens county reversed and new trial ordered, costs to abide the event.  