Gumb v. Twenty-Third Street Railway Co. — 58 N.Y. Super. Ct. 1

Majority

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CHARLES B. GUMB, Respondent, v. THE TWENTY-THIRD STREET RAILWAY COMPANY, Appellant.

Headnote

Negligence—Refusals to charge the jury as requested by defendant; also approval of charges made and, excepted to.

The trial judge refused to charge the jury as requested by defendant’s counsel “That if, as matter of fact, the plaintiff thought he had so stopped his wagon as to leave room for the defendant’s ear to pass, and the defendant’s driver also thought he had room to pass, and both were mistaken, the plaintiff cannot recover.” Held, that the refusal was not error, because 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 defendant’s driver’s thought was without previous'Observation and prudent judgment, the plaintiff would be free from negligence and the defendant’s driver guilty of it.

So also as to the refusal 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.” Held, it was not error, because it was not matter at 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 required the plaintiff to look, and it may have been negligence in the driver to think that he had room to pass.

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So also as to the refusal to charge the jury “ that if the jury believed 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, that he was negligent.” Held, that there was no error in this refusal because 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 plaintiff was not bound, as a matter of law, to believe that the rate of speed, as first observed, if continued, would end in a collision, or that said rate would, as matter of fact, continue. *

Before Sedgwick, Ch. J., and Truax, J.

Decided March 4, 1890.

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

Leslie W. Russell and Welton Percy, for appellant.

■ H. B. Closson and Charles M. Hough, for respondent.

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 defendant’s car to pass, and the defendant’s 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 defendant’s driver’s thought was without previous observation and prudent .judgment, the

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plaintiff would be free from negligence and the defendant’s 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 plaintiff 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 whát he had done before the accident. He was then asked, what he had paid those men ? The question was objected to on the ground, that what was paid was no part of damages that the plaintiff had a right to recover.

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My 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. Thé witness testified what he paid and also that the sum paid was the reasonable value of the services. He was 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 disabled 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.

Tbuax, J., concurred.

Cases cited

Hoffmanv. Union Ferry Co. 68 N. Y. 385 N.Y. 1877-02-18 p. 4