Hyperlawhypertext legal database Schron v. Staten Island Electric Railroad 45 N.Y.S. 124

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Schron v. Staten Island Electric Railroad

45 N.Y.S. 124 Court N.Y. App. Div. Decision date 1897-04-26 English

Delivered by HATCH, J.

Contents

Majority

p. 124
(16 App. Div. 111.)
SCHRON v. STATEN ISLAND ELECTRIC R. CO.
(Supreme Court, Appellate Division, Second Department.
April 26, 1897.)

Headnote

1. Imputable Negligence—Persons ■ Engaged in Joint Venture.
Two persons, with a wagon, engaged in moving furniture, are engaged in a joint venture, and the negligence of one in the management of the wagon will he imputable to the other.
2. Street Railroads—Injury to Person on Track.
Negligence and contributory negligence are questions for the jury, where plaintiff gave evidence that when deceased drove on defendant’s street-car track the car by which he was killed was 125 feet distant, and that no bell was rung as it approached the wagon, while defendant gave evidence that decedent drove on the track about 10 feet in front of the car.
p. 125
Appeal from trial term, Richmond county.
Action by Maria Schron, as administratrix of George Schron, deceased, against the Staten Island Electric Railroad Company, to recover damages for the death of plaintiff’s intestate. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.
Affirmed.
Argued before GOODRICH, P. J., and CULLER, BARTLETT, HATCH, and BRADLEY, JJ.
Wm. R. Dykman, for appellant.
T. F. Hamilton, for respondent.

The son of the deceased and the deceased were both upon the wagon when the accident happened, and had been for some time prior thereto. Both were engaged in moving goods, for which purpose the horse and vehicle were used, and they were so occupied upon that day. They were therefore engaged in a joint occupation and venture, and each became liable for the negligence of the other. McCormack v. Railroad Co. (not yet officially reported) 44 N. Y. Supp. 684 . If either were negligent in a manner contributing to the injury, it would furnish a sufficient answer to plaintiff’s right to recover. From the evidence the jury were authorized to find that the deceased •and his son occupied the same seat upon the wagon, the latter driving the horse. They were driving north, along Bay street, in Tompkinsville. In this street the defendant has double tracks. The wagon was in the easterly track, driving between the rails. In front of him was a horse and buggy, and in front of that was a covered double •truck, which was proceeding at a very slow rate. These vehicles had ■occupied their respective positions for a distance of about 800 feet. As stated upon the argument, the space to the right of the easterly track, between it and the curb, was not wide enough to permit of the wagon passing by the other vehicles upon that side. The double truck in front had its back curtain down, and the vehicle and top prevented a view of the track and approaching cars on the westerly •side. The driver of the buggy, after proceeding the 800 feet, turned •out to the west, and drove ahead of the double truck. The son of deceased, being desirous of proceeding at a faster rate, also turned from the track to the west, which brought him upon the westerly track of the railroad. When he came upon the track,,and had reached a point where the head of his horse was about opposite the seat of the double truck, he discovered a car approaching him at quite a rapid rate, and distant about 125 feet. The space to the west of the westerly track was sufficient for the wmgon to drive by and clear the ■car. The other method to escape the car was to pull up and allow the truck to pass, and turn again into the easterly track. The latter is what the driver attempted to do, and succeeded in getting the horse and front part of the wagon off of the westerly track, when the car struck the rear part of the wagon, throwing the deceased from the wagon, and inflicting injuries from which he subsequently died. The son of the deceased testified that, before he turned to go upon the westerly track, he listened for the ringing of a bell; that he did not stop for that purpose, but that he did give attention to it, and

p. 126
heard no bell. There was other evidence tending to establish that no bell was rung upon the car as it was approaching, and not until it was upon the point oí striking the wagon. Upon these facts, we are of opinion that the question of contributory negligence of the deceased and his son became a question of fact for the jury. ■ The case made by the defendant upon this point was to the effect that the horse and wagon were turned onto the track when the car was only 10 feet away. If this were the fact, then the driver was clearly guilty of contributory negligence. But upon this point the evidence was conflicting, and we are unable to say, as a legal conclusion, that the evidence of the defendant was controlling upon this point, or that the evidence of the plaintiff was improbable, or so inconsistent as to have warranted the court in deciding the question. It became a matter, for the jury to determine, and the court submitted the question to them in a charge entirely unexceptionable, and their finding is conclusive upon us. If the car xyas 125 feet away when the wagon Ivas turned into the westerly track,—and the jury were so authorized to find,—then, upon the testimony of the defendant as well as the plaintiff, it was clearly within the power of the motorman to stop his car and permit the horse and wagon to clear the street. It became the duty of the operator of the car so to do, and his failure in this regard was sufficient upon which to predicate negligence. Fishbach v. Railway Co., 11 App. Div. 152 , 42 N. Y. Supp. 883 . This conclusion does not bring us in conflict with Meyer v. Railroad Co., 9 App. Div. 79 , 41 N. Y. Supp. 92 . In that case the plaintiff drove in a diagonal direction towards a car approaching him, which was in his plain view for 150 feet. There was no cross street at the point, and no obstruction which prevented his turning to either side of the street. We held that the plaintiff was guilty of contributory negligence, and exonerated the defendant from negligence, upon the ground that it was the duty of the former to have turned off the track, and that the latter was not bound to anticipate that he would not do so. The distinction between the cases is clear.

¡No error was committed in the court’s refusal to charge the jury, in the language of the counsel, that the jury could not find that the bell upon the car was not rung. The request proceeded upon the assumption that plaintiff’s evidence upon this point was negative, merely; that the witnesses did not hear the bell, and the defendant’s evi-' dence was positive and affirmative that the bell was rung. The evidence in the case did not warrant the charge requested. The testimony given by the son was to the effect that he gave .the matter attention, and that he heard no bell; that he listened for it; that it did not ring, until just before the wagon was struck. Two other witnesses swear that they heard no bell, and each was in a position to hear, if rung. This we think was sufficient upon which the court was justified in refusing the charge requested. Greany v. Railroad Co., 101 N. Y. 419 , 5 N. E. 425 .

We find no ground warranting a disturbance of this judgment. It should therefore be affirmed, with costs. All concur.

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