Gumb v. Twenty-third Street Railroad — 30 N.Y. St. Rep. 253

Majority

p. 253

Charles B. Gumb, Resp’t, v. The Twenty-third Street Railroad Company, App’lt.

(New York Superior Court,

General Term,

Filed March 4, 1890.)

Headnote

1. Negligence—Ohabge.

In an action for injuries caused by negligence, the court refused to charge that if plaintiff thought he had so stopped liis wagon as to leave-room for defendant’s car to pass, and defendant’s driver also thought lie had room to pass, and both were mistaken, plaintiff could not recover. Held, no error.

2. Same.

It is not error to refuse to charge that if plaintiff stopped his wagon without looking to see whether he had left room for the car to pa-s, and defendant's driver thought he had, but misjudged the distance, plaintiff" couli not recover. It was for the jury to determine whether ordinary' prudence would require plaintiff to look.

3. Same—Contbibutoby.

A person is not, as matter of law, bound to believe- that the rate of speed of a horse car which, if continued, would end in a collision, will, in fact, continue.

4. Same—Damages—Evidence.

Plaintiff was prevented by the accident from attending to his business' as a butcher, and employed two men to do the work he formerly did. Held, that evidence as to what he paid these men was admissible on the-question of damage.

p. 254

Appeal by defendant from judgment entered upon verdict of jury for plaintiff • and from order denying motion for new trial made upon the minutes.

Action to recover damages for personal injuries and injury to a wagon, which were claimed to have been sustained through the negligence of the defendant.

Leslie A. Bussell and Wilton Percy, for app’lt; H. B. Olosson and Gliarles M. Hough, for resp’t.

The testimony required that the court should submit to the jury the issue that related to the negligence of defendant and the absence of negligence of plaintiff.

In my opinion the court was right in refusing to charge the request of defendant to charge: “That if, as matter of fact, the plaintiff thought he had so stopped his wagon as to leave room for the defendants’ car to pass, and the defendants’ driver also thought he had room to pass and both were mistaken, the plaintiff cannot recover.” This was not correct, for if the plaintiff’s thought was the result of the exercise of observation and a prudent judgment required by the circumstances, and on the other, hand the defendants’ driver’s thought was without previous observation and prudent judgment, the plaintiff would be free from negligence and the defendants’ driver would be guilty of it.

The same consideration applies to the request to charge that if the plaintiff stopped his wagon just across the track without looking at all' to see whether he had left room for the car to pass, and the defendant’s driver thought he had room to pass but misjudged the distance, the plaintiff cannot recover. It was not matter of law that the plaintiff should have looked to see where the hind wheels of his wagon were. It was for the jury to determine whether ordinary prudence would require the plaintiff to look. And it may have been negligence in the driver, to think that he had room to pass.

Another request was to charge the jury that if the jury believe that the plaintiff knew that his wheels were standing upon defendant’s track and saw the car approaching at a rate of speed that rendered a collision, imminent and he made no attempt to avoid that collision he was negligent. I think there was no error in refusing to charge this. The facts would permit the jury to find that no attempt that a due diligence would call upon the plaintiff to make would have resulted in avoiding the collision. And the pjaintiff was not, as a matter of law, bound to believe that the rate of speed, which when first observed, if continued would end in a collision, would in fact continue.

The plaintiff gave on the trial, testimony which would have justified the jury in finding that the bodily injuries he had received in' the accident prevented him from attending to his business. He was a butcher. He testified further that he hired two men, who did in his business what he had done before the accident. He was then asked what he had paid-those men? The question was objected on the ground that what was paid was no part of the damages that the plaintiff had a right to recover. My

p. 255

opinion is that the plaintiff had a right to repair the wrong' done in disqualifying him from attending to his business and the reasonable expense of repairing that wrong might be recovered.

The witness testified what he paid and also that the sum paid was the reasonable value of the services. He ivas qualified to testify as to such reasonable value. Of course if the plaintiff should recover these sums, he was not entitled also to recover damages from his being disenabled to attend to his business. Such a question was not raised upon the objection, and it would have been matter for direction to the jury subsequently. The direction to the jury on this subject was correct and was not excepted to. Hoffman v. Union Ferry Co., 68 N. Y., 385 .

Judgment and order appealed from affirmed, with costs.

Truax, J., concurs.