Opinion
May Term, 1903.
Charles F. Brown, for the appellant.
J. Brownson Ker, for the respondent.
We think this judgment should be reversed for the error in charging the request of the plaintiff which had no application to the facts presented. This error we have held in the three recent cases of Csatlos v. Met. St. R. Co. ( 70 App. Div. 606); Sciurba v. Met. St. R. Co. (73 id. 172) and Bortz v. Dry Dock, E.B. B.R.R. Co. (78 id. 388) requires a reversal. What was said in Bortz v. Dry Dock, E.B. B.R.R. Co. ( supra) is equally applicable here, namely, that the case "is altogether unlike those in which a new element is introduced to show that notwithstanding contributory negligence, by the exercise of reasonable care and prudence of a defendant or its servants the accident could be avoided." It is true that we have testimony that the car while approaching was suddenly started forward when the plaintiff was at the track; but there is nothing to show that the gripman was aware of the plaintiff's proximity and his position of danger and thereafter negligently caused the accident. There were presented, therefore, merely the ordinary questions of negligence and freedom from contributory negligence and no facts to justify charging the plaintiff's request. The evidence with respect to the plaintiff's freedom from contributory negligence, as shown by a review of the record and by the words of the learned trial judge in denying the motion for a new trial that he had concluded "to give the plaintiff the benefit of the doubt" he entertained, in view of the finding of the jury as they may have "regarded the plaintiff's conduct as an error of judgment," was close; and under such circumstances the erroneous charge was particularly harmful.
Our conclusion is that the judgment and order must be reversed and a new trial ordered, with costs to appellant to abide the event.
VAN BRUNT, P.J., INGRAHAM, McLAUGHLIN and LAUGHLIN, JJ., concurred.
Judgment and order reversed and new trial ordered, costs to appellant to abide event.