McDonald v. Metropolitan Street Railway Co.

This is an action to recover for injuries which caused the death of plaintiff’s intestate, alleged to have occurred through the negligence of defendant’s motorman in charge of a Broadway north-bound car at Thirty-Ninth street on December 15, 1895. The facts have been presented and considered in this court upon two former occasions ( 46 App. Div. 143 , 61 N. Y. Supp. 817 ; 75 App. Div. 559 , 78 N. Y. Supp. 284 ), and passed upon by the Court of Appeals ( 167 N. Y. 66 , 60 N.

The question of fact involved is whether the boy, who, at the time of the accident, was 12 years of age, ran immediately in front of the car, after passing behind a south-bound car, as claimed by defendant, or whether he ran upon the track and fell while the car was some 50 feet away, and was run over owing to defendant’s negligence in the operation of the car. In support of the latter theory there was testimony that the car could be stopped in 10 feet.

The court, at defendant’s request, charged:

“Reasonable care required of the deceased boy a vigilant use of his senses. He was bound to use his eyes and ears in attempting to cross the defendant’s tracks, so as to avoid collisions with cable cars; and if there was an omission of this care or duty on the part of the deceased boy, which contributed to the accident, such omission was contributory negligence 'upon his part, and the jury should find a verdict for the defendant.”

To this charge the plaintiff’s counsel excepted, and said:

“In that connection, I ask your honor to charge that, even if the jury believe that the boy carelessly or negligently ran or walked on the track, still such carelessness or negligence would not entitle the plaintiff to recover, unless it was the proximate cause of the injury.”

The court so charged, and the defendant excepted. The jury returned a verdict in plaintiff’s favor, and from the judgment thus entered the defendant appeals.

The appellant insists that this charge was erroneous, because it eliminated from the case the doctrine of contributory negligence; that the case .did not present the facts necessary to bring it within the exception to the general rule, there being no new act of negligence shown on the part of the defendant that was. the proximate cause of the accident. Csatlos v. Met. St. Ry. Co., 70 App. Div. 606 , 75 N. Y. Supp. 583 ; Bortz v. Dry Dock, 78 App. Div. 386 , 79 N. Y. Supp. 1046 . In the latter case cited it was said:

“The modification of the charge was an application to the concrete case of a rule with respect to contributory negligence which applies only in cases in which some new circumstance is introduced or new relation established, apart from the original act or omission constituting negligence; such new circumstance being the proximate cause of the injury sustained.”

The respondent contends that the evidence herein that the boy fell upon the track some 40 or 50 feet ahead of the car, and was struck by the car, although it might have been stopped within 10 feet, permits the inference that-the proximate cause was the negligence so to stop, and that a new circumstance was thus presented, and hence the charge was applicable. Both sides thus agree that the .request charged vyas a statement of the rule of law applicable to those exceptional cases wherein it appears that, after the initial danger resulting from the negligence of one or both of the parties, there was a second negligent act, which was the proximate cause of the injuries. As said by this court in the Csatlos Case, supra, a good illustration of the application of the rule of law referred to was in the Weitzman Case (Weitzman v. Nassau R. R. Co., 33 App. Div. 585 , 53 N. Y. Supp. 905 ), where a child fell upon a fender of a car, and after this culmination of the negligent act which resulted in his