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and 106 New York State Reporter

He contributed by his own act in bringing about the accident for which he complains, and therefore cannot recover. Judgment of the general term of the city court and of the trial term of the city court reversed, and new trial ordered, with costs to the appellants to abide the event.

Judgment reversed, and new trial ordered, with costs to appellants to abide event. All concur.

REILLY v. BROOKLYN HEIGHTS R. CO.

(Supreme Court, Appellate Division, Second Department. November 15, 1901.)

1. NEGLIGENCE-DEATH-DAMAGES.

Fifteen thousand dollars is not excessive damages for negligently causing the death of a healthy workingman, 36 years old.

2. SAME-STREET RAILWAYS-CROSSING.

In an action for death caused by the collision of a street car with a coach at a crossing, an instruction that the driver of the coach was entitled to the presumption that the car would be moved at that point under a reasonable state of control, so that it might be readily stopped in case of emergency, to give him an opportunity to get over in safety, was not erroneous.

3. SAME RIGHTS OF PRIVATE CONVEYANCES.

Neither a street railway car nor the driver of a carriage has a paramount right of way at a crossing, but their rights are equal.

4. SAME-INSTRUCTIONS-QUALIFYING REMARK-WITHDRAWAL.

Error of the trial judge in remarking, as he was about to give an instruction requested by one party, and assented to by the other, that he would charge it, although he did not think it was sound, was rendered harmless by the subsequent explicit withdrawal of the statement, and the express direction that the jury must follow the proposition of law as charged.

5. SAME-OPERATION OF CAR AT CROSSING-PRESUMPTION.

In an action for death caused by collision with a street car at a crossing, where there was no testimony to the effect that the motorman took any thought with respect to the safety of his action in operating the car, an instruction that, if plaintiff's intestate had a right to assume that he could cross the street in safety, the motorman might indulge in the same presumption without negligence, was properly refused.

Appeal from trial term, Kings county.

Action by Annie Reilly, as administratrix of Patrick Reilly, deceased, against the Brooklyn Heights Railroad Company. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.

I. R. Oeland (G. V. S. Williams, on the brief), for appellant. James C. Cropsey (B. F. Morris, on the brief), for respondent.

WILLARD BARTLETT, J. This action arose out of a collision between one of the defendant's electric cars and a coach driven by the plaintiff's intestate, who was thrown from his seat and instantly killed. The collision occurred on Fulton street, in Brooklyn, near

the intersection of Clermont avenue. Gates avenue enters Fulton street immediately east of Clermont avenue, at an angle of about 45°. The coach had come out of Clermont avenue, and was moving up and across Fulton street, north and east, toward Gates avenue, when it was struck and demolished by the defendant's west-bound car, which was propelled so rapidly that it ran 250 feet after the collision before stopping.

The verdict in favor of the plaintiff is sufficiently supported by the evidence, and we are not convinced that the award of $15,000 damages represents more than the healthy and vigorous life of this coachman (a man but 36 years old) was worth to his wife and seven children. See Schmitt v. Insurance Co., 13 App. Div. 120, 43 N. Y. Supp. 318. A few of the exceptions, however, present questions which ought not to be passed upon without acquainting counsel with our views in respect to them.

The court charged the jury that, "in the absence of express notice to the contrary by the circumstances, the deceased was entitied to presume that the car would be moved up to the street intersecting under a reasonable state of control, so that it might be readily stopped in case of emergency, to give him an opportunity to get over in safety." The appellant insists that this instruction was erroneous, because tantamount to saying that the motorman was bound to have his car under such control that it could readily be stopped in case of an emergency which the plaintiff's intestate had himself created. Such does not seem to us to be the fair import of what was said by the learned trial judge. The plain meaning was that the driver of the coach, unless advised to the contrary by the situation, might properly assume that the motorman of a car approaching an intersecting street would exercise reasonable care to have his car under such a state of control as to be prepared for emergencies; and this does not seem too strong a statement of the measure of prudence required by the law. Buhrens v. Railroad Co., 53 Hun, 571, 6 N. Y. Supp. 224, affirmed in 125 N. Y. 702, 26 N. E. 752.

In another part of the charge the jury were instructed that there was no paramount right of way for either the railroad company or the driver of the carriage, but that their rights were exactly equal. There was no error in this, in view of the character of Gates avenue, as a practical continuation of Clermont avenue. "At intersecting streets, or a practical continuation of a bisecting street, the rights of a car and a crossing vehicle are equal." Hewlett v. Brooklyn Railroad Co., 63 App. Div. 423, 71 N. Y. Supp. 531.

When about to give an instruction requested by counsel for the defendant, and assented to by counsel for the plaintiff, the learned judge said to both, "I will charge it, although I do not think it is sound." Whatever harm might otherwise have been caused by this statement was averted by its subsequent explicit withdrawal, and the express direction to the jury that they must follow the proposition of law as charged. The prompt and clear correction of the error renders the exception unavailing.

Finally, exception was taken by the defendant to the court's re

and 106 New York State Reporter

fusal to charge that, "if the plaintiff's intestate had a right to assume that he could cross the street in safety, the motorman might well indulge in the same presumption without being charged with negligence." We can discover no evidence in the case upon which to base the instruction thus requested. There is no testimony or suggestion to the effect that the motorman indulged in any presumption, or that his action was influenced by any assumption whatever. His statement is that upon seeing the coach he tried "brake the car up" as quickly as he could. "It was done in an instant," he The proposition which lies at the basis of the request, to the effect that, where one of two parties has assumed that a given condition of things is safe, the other party may act upon the same as.sumption without being chargeable with negligence, can hardly have any application to a case where there is no proof as to what either party supposed to be the fact. In the cases cited by the appellant it appeared that both parties to the accident believed there was no danger, so that the error was mutual, and gave rise to no liability. McKelvey v. Railway Co., 5 Misc. Rep. 424, 26 N. Y. Supp. 711; Spaulding v. Jarvis, 32 Hun, 621. The judgment should be affirmed.

Judgment and order affirmed, with costs. All concur.

PINDER V. BROOKLYN HEIGHTS R. CO.

November 22, 1901.)

(Supreme Court, Appellate Division, Second Department. INJURIES TO TRAVELER ON HIGHWAY-STREET RAILWAYS-NEGLIGENCE OF MOTORMAN.

Plaintiff's intestate, a bright boy, 14 years of age, was kicked off the front platform of a street car by the motorman, and fell, screaming, on his back. He got up and walked slowly and lame across the other track, when he was struck by a car coming from the opposite direction from the one on which he had been riding, and received injuries causing his death. Held error to nonsuit plaintiff, as the question of whether he was in the exercise of ordinary care under the circumstances was for the jury.

Appeal from trial term, Kings county.

Action by James M. Pinder, as administrator of Arthur Pinder, deceased, against the Brooklyn Heights Railroad Company. From a judgment in favor of defendant, plaintiff appeals. Reversed. Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and SEWELL, JJ.

Robert Stewart, for appellant.

I. R. Oeland, for respondent.

HIRSCHBERG, J. Adopting the most favorable view of the evidence for the plaintiff, it would seem to follow that the judgment of nonsuit should be reversed. The question determined by the court was one of fact, and not of law, and it should, therefore, have been submitted to the jury. The accident occurred on East Seventy-Sixth

street, Brooklyn, opposite Eppigg's Hotel, near Bergen Beach. The plaintiff's intestate, a bright, intelligent lad, 14 years of age, was riding on the front platform of a Lorimer street car, going in the direction of the beach. He was kicked off the car by the motorman, and fell, screaming, upon his back. The car continued toward the beach. The boy picked himself up, turned, and walked slowly and lame across the other track, when he was struck by a Nostrand avenue car, coming from the beach without warning and at a very high rate of speed, and received injuries from which he died that day. The nonsuit appears to have been based chiefly upon the ground that there was no evidence given to prove that the boy looked or listened before he attempted to cross the track. Both cars were operated by the defendant, however, and there was nothing in the case to indicate that the motorman's act was justified in the slightest degree. It may very well be that the brutal treatment which the boy received, if wholly unprovoked and unexpected, resulting in a violent fall from a moving car upon his back upon the pavement, may have rendered him for the moment unable to exercise his faculties with normal acuteness, and that, under the influence of the impaired condition thus wrongfully created by the defendant, he could neither appreciate nor avoid the impending danger. The learned trial justice considered that but a step or two was required in order to place him in front of the car by which he was killed; and if the act of the motorman, in the opinion of the jury, did create a condition by which he was caused to walk at once in front of the oncoming car, without realizing what he was doing, or appreciating the danger he was incurring, the effect would be quite similar in principle as if the motorman had kicked him over to the other track, and directly in front of that car. The question of negligence in the operation of the Nostrand avenue car is not now under consideration. In the view taken, it is apparent that practical men might reasonably conclude that the deceased exercised all the caution which was to have been expected of him under the circumstances created by the defendant's wrongful act of violence, and that therefore contributory negligence could not be predicated as matter of law. If he was blameless, in a legal sense, for his act in stepping in front of the Nostrand avenue car, then the jury might properly determine, under suitable instruction, that the act of the motorman in kicking him off the Lorimer street car was negligence imputable to the defendant, wholly independent of any question of negligence in the operation of the car by which he was killed.

The judgment should be reversed, and new trial granted; costs to abide the event. All concur.

(36 Misc. Rep. 131.)

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SMITH v. CONSOLIDATED GAS CO. et al.

(City Court of New York, General Term. October, 1901.)

JOINT TORT FEASORS-RELEASE.

Where a person injured by the negligence of certain parties discharges one of them, a reservation in the discharge of a right to sue the others is unavailing, and all are discharged from liability.

Appeal from trial term.

Action by Simon Smith against the Consolidated Gas Company and the Warren-Scharf Asphalt Paving Company. Judgment for defendants, and plaintiff appeals. Affirmed.

Argued before FITZSIMONS, C. J., and SCHUCHMAN and DELEHANTY, JJ.

Robert H. Ernest (Percy W. Crane and J. Aspinwall Hodge, Jr., of counsel), for appellant.

David McClure, for respondents.

FITZSIMONS, C. J. The plaintiff, it appears, was injured by the negligence of the defendants. Some time after the commencement of this action the plaintiff made and executed the following agreement with the asphalt company, and it was made part of the Consolidated Gas Company's answer as a defense:

"Whereas, Simon Smith has made claim against the Warren-Scharf Asphalt Paving Company for damages for personal injuries received by the said Smith by his wagon falling into an excavation of 3rd street, near Avenue C, in the city of New York, on or about the 20th day of April, 1898; and whereas, the said Warren-Scharf Asphalt Paving Company, to avoid litigation, but admitting no liability for said damages, has agreed to pay the said Smith the sum of one hundred and fifty dollars, and it being distinctly understood by the parties hereto that the said sum of one hundred and fifty dollars is received by the said Smith only as part payment on account of any claim for damages he may have against the Consolidated Gas Company, and is not received by the said Smith in satisfaction of his claim for damages against the said Consolidated Gas Company: Now, therefore, I, the said Simon Smith, for and in consideration of the said sum of one hundred and fifty dollars, to me paid by the said Warren-Scharf Asphalt Paving Company, do hereby promise and agree that I will not ask for or make any demand upon the said Warren-Scharf Asphalt Paving Company for any damages sustained by me as aforesaid, and I will not bring any action or proceeding at law or in equity against the said company for any damages sustained by me as aforesaid, or for any damages to my said wagon; nevertheless reserving and retaining all claim I have made against the said Consolidated Gas Company for damages as aforesaid.

"In witness whereof I have hereunto set my hand this 23rd day of June, 1898.

his "SIMON X SMITH. mark.

"In the presence of B. F. Findley.
"Acknowledgment dated June 23, 1898."

Upon the trial no evidence was introduced by either side, and the making and execution of the agreement above mentioned was admitted. The trial justice dismissed the complaint, upon motion of the defendants' counsel, upon the ground that said agreement in law

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