December 30, 1908.
Bayard H. Ames [ Walter Henry Wood and James L. Quackenbush with him on the brief], for the appellant.
John B. Stanchfield [ Max Monfried with him on the brief], for the respondent.
The instruction of the court to the jury excepted to is as follows:
"When one attempts to cross the tracks of a street car and has approached the track at such a distance from an approaching car that he has reasonable ground to suppose that he will be able to cross the track, it is the duty of the street car driver to give him a reasonable opportunity to cross, and if for that purpose it is necessary for him to check the speed of the car or even stop the car entirely for a short space, it is his duty to do it, and the person crossing the track has the right, without being charged with contributory negligence, to assume that that duty will be performed."
It is urged that this makes what the plaintiff supposed the standard of due care by her. But that is not so. The language is directly the opposite, viz.: "When one attempts to cross the tracks of a street car and has approached the track at such a distance from an approaching car that he has reasonable ground to suppose", etc. It is not that he supposes, etc., but that he has reasonable ground to suppose. It is also urged that the instruction is erroneous because it excludes every element of fact except that the person has "approached" the track, and the distance of the car, and tests his contributory negligence by these alone. By no means; it excludes nothing. The test put by the instruction is that the pedestrian have "reasonable ground to suppose" he can pass in safety, and that embraces the distance of the car, its speed — in fine, everything. It will not do to finesse with the charges of trial Judges. Controlling regard should be had to the substance, even in the rough, rather than to fine distinctions which those who seek to make them find our language scarcely flexible enough to express. This instruction was given at the request of the plaintiff's attorney. Requests to charge such abstract propositions should not be made. The charge to the jury and request to charge should be based on the concrete facts of the case. A charge is not to be a mere legal essay.
The judgment should be affirmed.
WOODWARD, RICH and MILLER, JJ., concurred; JENKS, J., voted for reversal on the ground of error in the charge of the court at folios 206 and 207 of the record.
Judgment and order affirmed, with costs.