
    William L. Purcell, Respondent, v. The Union Railway Company, Appellant.
    (Supreme Court, Appellate Term,
    March, 1908.)
    Street railways — Operation—Actions—-Instructions — Degree of care.
    In an action for personal injuries, alleged to have been caused while attempting to cross the tracks of a street railway, a charge that “ when one attempts to cross the tracks of a street car and has approached the track at such a distance from the approaching ear that he has reasonable ground to suppose that he will be able to cross the track, it is the duty of the street car driver to give him a reasonable opportunity to cross, and if for that purpose it is necessary for him to stop his car for a time, it is his duty to do so,” is objectionable upon the ground that it largely and erroneously leaves the standard of the motorman’s care to plaintiff who had no more right to indulge in the assumption that the motorman wrould stop than the motorman that the plaintiff would keep- out of the way of the car. Such charge is not cured but rather accentuated by a further instruction that the jury must determine, assuming the truthfulness of plaintiff and his witnesses, whether, when he approached the track, thé car W'as such a distance away as led him to believe that he could cross it in safety and that if he did not so believe he could not recover because he accepted the risk he then took, wdrich left out of consideration the mutuality of the respective obligations of the plaintiff and of the motorman.
    Appeal by the defendant from a judgment in favor of the plaintiff, entered in the Oity Court of the city of Hew York, a.nd from an order denying defendant’s motion for a new trial.
    
      Anthony J. Ernest, for appellant.
    Joseph H. Radigan, for respondent.
   MacLean, J.

Upon the evidence alone, one passenger supporting the testimony of the plaintiff and the conductor, and another passenger, a woman, that of the motorman, the jury might have resolved the questions of fact either way and found a verdict not here to he disturbed, notwithstanding some inconsistencies on the plaintiff’s part respecting points of the compass and the direction in which he had been and was driving before and at the time of the collision.

One important exception, however, was taken tó the charge of the learned trial justice, who said: “Row what is the law applicable to this case ? The law says that when one attempts to cross the tracks of a street car and has approached the track at such a distance from the approaching car that he has reasonable ground to suppose that he will be able to cross the track, it is the duty of the street car driver to give him a reasonable opportunity to cross, and if for that purpose it is necessary for him to stop his car for a time, it is his duty to do so.”

That was an objectionable assertion, inasmuch as it largely left the standard of the motorman’s care (the ordinary care of an ordinarily prudent man) to the apprehension of the plaintiff, an incorrect standard. Fact it is that almost these very words can be found in an opinion in the court of next 'resort, based according to the accompanying citation upon an earlier opinion, in another case, containing an outburst of aphorisms or colloquial commonplaces which bearing the hall-mark of an appellate court have since been fervidly repeated to juries in street crossing cases. These words do not express the law — the law applicable to the case at bar. Furthermore, as if to impress upon the jury the signal importance of the plaintiff’s reasoning, the court added: But I say to you gentlemen, right here, that the inverse of that rule or proposition is equally true. You have got to determine, assuming the truthfulness of the statements given to you by the plaintiff and his witnesses when he approached that track in his effort to cross it, whether that car was such a distance away from him as led him to believe that he could get over the track in safety. If he did not, he could not recover, because he accepted himself the risk he then took.” This addition was not curative. This accentuated the instruction foregoing and left out the mutuality of their respective obligations. Even if the plaintiff had reasonable ground (ground reasonably) to suppose, he might not heedlessly proceed under circumstances obviously perilous. Such accentuation of the motorman’s obligation to exercise care to avoid a collision by making it his duty to stop when the plaintiff by his reasonable ground of supposition perilously essayed to pass allowed an inference, almost naturally, that the plaintiff might rely upon the motorman stopping. That is not the law, nor is it the unwritten rule of the road, both of which require active care on the part of the individual in charge of the vehicle, horsed or horseless. The plaintiff had no more right to indulge the assumption that the motorman would stop than the motorman that the driver would keep out of the way of the car. Thompson v. Metropolitan St. R. Co., 89 App. Div. 11, 13. For this erroneous laying down of the law, the judgment must be reversed.

It may be added, while there is no tariff for injuries, that, according to the compensation roughly deducible from verdicts, the present is at least more than double the damage ordinarily awarded, particularly as from the plaintiff’s active exercise of his calling he has presumably recovered his good form and keeps it by regular, unless something too sedentary, exposure in the open air.

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

Bisohoee, J.

(concurring). I concur in the reversal of this judgment for error in the charge. The language, taken by the trial court, from the opinion rendered in Lawson v. Union Ry. Co., 40 App. Div. 312, was evidently used by Mr. Justice Rumsey, not as a complete statement of the relative rights and duties of the operators of cars and of persons crossing the tracks, but simply as bearing upon the matter of contributory negligence. That this was the meaning of the court and that there was no intention to depart from the well settled rules of law applicable to the subject, is rendered quite clear from the case cited by the writer of the opinion (Kennedy v. Third Ave. R. R. Co., 31 App. Div. 30) as authority for the proposition stated.

The words thus used by the Appellate Division, when employed verbatim for an instruction to the jury in the case at bar, necessarily prejudiced the defendant; since the fact of the operation of the plaintiff’s mind as to the reasonableness of his attempt to cross the track was made to measure the duty of the defendant’s servant, whether the latter had reasonable ground to expect the attempt, or not.

Gildersleeve, J., concurs.

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