New York Transp. Co. v. O'Donnell

• Decision Date: 11 February 1908
• Docket Number: 145.
• Citation: 159 F. 659
• Parties: NEW YORK TRANSP. CO. v. O'DONNELL.
• Court: U.S. Court of Appeals — Second Circuit

159 F. 659

NEW YORK TRANSP. CO. v. O'DONNELL.

No. 145.

United States Court of Appeals, Second Circuit.

February 11, 1908

Arthur K. Wing, for plaintiff in error.

R. J Donovan (Herbert D. Cohne, of counsel), for defendant in error.

Before LACOMBE, COXE, and NOYES, Circuit Judges.

NOYES Circuit Judge.

In this action the plaintiff seeks to recover damages for the death of William O'Donnell, resulting from injuries received in a collision with an automobile owned and operated by the defendant upon or near the Plaza, New York, in January, 1905. The basis of the action stated in the complaint was the negligence of the defendant's chauffeur. The answer denied the allegations of negligence, and charged contributory negligence.

Upon the trial the court charged the jury with respect to the questions of negligence and contributory negligence, and then went on to say:

'If an accident occurs under such circumstances that the person injured, through sudden fright or fear or confusion, does not have opportunity to do more than make a momentary judgment, and he makes the wrong judgment under the stress of the situation, so that he does not have time to exercise reasonable care, then the doctrine of contributory negligence does not come in. As I understand it, that means this: If this deceased should have, without any warning which reached his intelligence, his senses, if he should have found himself in a position where he had no chance to exercise his judgment, but had to act so quickly that a reasonable man could not have told what he would do, then you must go back to the act that happened, and see whether the defendant had used reasonable care up to the time where this confusion occurred. If this deceased, O'Donnell without any notice which he had heard, suddenly found himself immediately under the dashboard of the automobile, and if he had stepped back might have avoided, but if he stepped forward could not step quick enough to escape, you should be satisfied as to whether the reason that he was run over was because he did not have time to estimate which way he should go.'

Subsequently when the defendant excepted to this portion of the charge, the court said:

'I did not charge that a person would not be guilty of contributory negligence if suffering from fright. I charged that, if a person were in such a situation that a reasonable man would not have a chance to form a judgment, there would be no contributory negligence. It would then be entirely a question of negligence of the defendant.'

Thus, in substance, the court told the jury that if, when O'Donnell first saw the automobile he was in a position of imminent danger from it, the doctrine of contributory negligence did not come into the case-- that the only antecedent negligence then to be considered was that of the defendant. The charge was erroneous. It withdrew from the jury the question whether O'Donnell was negligent in getting into the place of danger. A person may be excused for making a mistake when suddenly confronted with imminent danger, provided-- and only provided-- he was without fault in getting into the dangerous situation. Under the very circumstances described by the court the question of the decedent's prior negligence, instead of being out of the case, was of primary importance. It is true that in other parts of the charge the court considered at length the question of contributory negligence. But this did not cure the error. However well the jury were instructed with respect to that doctrine, they were told not to apply their knowledge at the point where it was most important.

As a new trial must be had for this misdirection, it is unnecessary to consider the other questions raised upon the record.

There is error, and the cause is remanded for a new trial.

COXE Circuit Judge (d...