Mertz v. Connecticut Co.

• Decision Date: 21 March 1916
• Citation: 112 N.E. 166,217 N.Y. 475
• Parties: MERTZ v. CONNECTICUT CO.
• Court: New York Court of Appeals Court of Appeals

217 N.Y. 475

112 N.E. 166

MERTZ

v.CONNECTICUT CO.

Court of Appeals of New York.

March 21, 1916.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Louis C. Mertz against the Connecticut Company. A judgment for the defendant was unanimously affirmed by the Appellate Division (161 App. Div. 941,145 N. Y. Supp. 1133), and plaintiff appeals. Reversed, and new trial ordered.

Hiscock and Cuddeback, JJ., dissenting.

Fred'k W. Sherman, of Portchester, for appellant.

Eugene F. McKinley, of White Plains, for respondent.

POUND, J.

This action was brought to recover damages for injury to property sustained by reason of the alleged negligence of defendant, a street railroad corporation, in running into and overturning plaintiff's automobile on the night of July 27, 1907, on Main street, in the village of Portchester.

The automobile was a seven-passenger Mercedes. The driver had turned it from the street railroad tracks in the street to drive across the sidewalk into the adjacent yard when the engine stalled, leaving the rear wheels close to the tracks of defendant and the top or cover projecting over them. Plaintiff and his companion got out of the automobile, and one of them had started to crank it when the trolley car of defendant came along and struck the projecting top, overturning the automobile and damaging it. The running board of the car scraped the rear wheels of the automobile.

The theory of the plaintiff was that the motorman had a plain and unobstructed view of the automobile, obviously in dangerous proximity to the track, when he was 150 feet away, and that he came on without slackening his speed, although he might easily have stopped his car in time to avoid the collision. The motorman testified for the defendant that he saw the automobile in time to stop, and then shut off his power without applying his brake; that he thought he could clear the automobile; that he did not see the top of the automobile extending back of the body because the top was down, the light was poor, and the automobile was a light gray in color, and thus it was inconspicuous; that he again put on his power, and then, when he saw the top when he was within ten feet of the automobile, he shut off power, put on the brake, and tried unsuccessfully to stop his car.

[1] The court instructed the jury:

‘If in the exercise of reasonable care by a proper lookout he [the motorman] was convinced that the automobile was far enough away from the track to go by without hitting it, and if he then ran on, * * * you would be bound to say that he conducted himself as an ordinary prudent man.’

Negligence must be determined upon the facts as they would appear to the typical purdent and competent man, and not upon the personl judgment of the man concerned. The Germanic, 196 U. S. 589, 596, 25 Sup. Ct. 317, 49 L. Ed. 610.

The question was not whether this motorman was convinced that he could pass the automobile in safety, but whether the prudent and competent motorman, acting prudently, would have been so convinced.

It was not a case where the motorman could assume that the automobile would not remain close to the track. Dorr v. Lehigh Valley R. Co., 211 N. Y. at page 374, 105 N. E. 652, L. R. A. 1915D, 368, Ann. Cas. 1915C, 763. The learned trial justice doubtless did not intend to direct the jury to infer reasonable care from the motorman's conduct as testified to by him, if they believed his evidence, and probably did intend to instruct the jury to measure the motorman's conduct by the standard of reasonable care; but the impression may well have been...