Rider v. Syracuse Rapid Transit Ry. Co.

Decision Date13 May 1902
Citation63 N.E. 836,171 N.Y. 139
PartiesRIDER v. SYRACUSE RAPID TRANSIT RY. CO.
CourtNew York Court of Appeals Court of Appeals
OPINION TEXT STARTS HERE

Appeal from supreme court, appellate division, Fourth department.

Action by Jane Rider against the Syracuse Rapid Transit Railway Company. From a judgment of the appellate division (72 N. Y. Supp. 1125) affirming a judgment in favor of plaintiff and an order denying a new trial, defendant appeals. Reversed.

Bartlett, Martin, and Vann, JJ., dissenting.

Charles E. Spencer, for appellant.

Frank C. Sargent, for respondent.

O'BRIEN, J.

The plaintiff recovered a verdict of $5,000 against the defendant in an action wherein the latter was charged with negligently causing the death of George H. Rider, the plaintiff's husband and intestate, on the 17th of December, 1900. It is alleged that the deceased, who was riding in a covered delivery wagon, while crossing over defendant's street car tracks at the interesection of two streets, was struck by one of defendant's electric cars, which caused him to be thrown to the pavement in such a severe and violent manner as to subsequently cause his death. The judgment entered upon the verdict has been unanimously affirmed by the appellate division, and hence the only questions presented by the appeal are those raised by exceptions to the charge of the learned trial judge as made, and to his refusal to charge as requested by defendant's counsel.

The case was tried and submitted to the jury upon the theory that, even though the deceased had been guilty of contributory negligence in driving upon the track under the circumstances disclosed by the evidence, yet such negligence on his part would not bar a recovery if the jury found that the accident could have been avoided by the motorman in charge of the car. In other words, the charge of the court, in substance, was that although deceased negligently drove upon the railway track, yet the plaintiff could recover if the jury was satisfied that the motorman, upon seeing that the deceased was about to cross, could, by the exercise of reasonable care, have brought the car to a stop before the collision which resulted in the injury. In order to clearly disclose the theory upon which the case was submitted to the jury, it will be necessary to state the substance of the charge. The learned trial judge stated that, assuming the plaintiff's evidence to be correct as to where the car was when the deceased attempted to cross the track,-which was from 35 to 80 feet back of him,-he was chargeable with knowledge that it was there, and, the act of the deceased being such as to show an intention to cross the street, the rule of law was that, if then, in view of that distance of the car, he had reasonable ground to suppose that he could cross it safety, he would not be chargeable with contributory negligence as matter of law, and it would be the duty of the motorman to furnish him a reasonable opportunity to cross; that if the jury should find that he did, in view of that distance, have reasonable ground to believe that he could cross in safety, and if then the motorman did not afford him a reasonable opportunity to cross, the jury would have the right to say that he was negligent, and that, if such negligence was the cause of the accident, that would furnish a basis of liability against the defendant. He also called the attention of the jury to the evidence on the part of the defendant which tended to show that the car was only 15 or 20 feet away when the deceased started to cross, and that, if such was the fact, the deceased ought not to have attempted to cross. The car was moving at the rate of six to nine miles an hour, and if, under these circumstances, the deceased attempted to drive upon the track in front of the car only 15 feet away, he was chargeable with negligence. He further instructed the jury substantially as follows: Assuming that the deceased was careless or guilty of negligence in trying to cross the track when the car was so close that he know, or ought to have known, that he would be hurt if the car kept on at the ordinary speed, still it did not follow that there could be no recovery against the defendant, for the law is that, if there had been negligence on the part of the deceased that would really bring about the result, still if the defendant could, in the exercise of reasonable care, have avoided the accident, it was its duty to do so. ‘It is a question whether, in such a case, the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the injured party's negligence; and in this case the question is whether, when it became apparent to the car driver that the decedent had the intention of crossing, and was in the act of crossing, if at that time the car was at such a distance that, if managed with the exercise of ordinary and reasonable care, the collision could have been avoided, there would be a basis for saying that the defendant was still liable, although the man was negligent in trying to cross the track.’ The only basis for this theory of the case is found in the evidence upon the part of the plaintiff, which tends to show that the deceased did not sustain the injury at the very moment that the car came in contact with the vehicle, but that it struck the rear end of the carriage, and then carried it for some distance along the track, when it was overturned, and thus the injury resulted. This accident differs from all such accidents at street crossings only in this respect; that the injury was not inflicted upon deceased at the instant when the car struck the vehicle, but after carrying it forward upon the track for a distance, which is claimed by plaintiff to be from 25 to 40 feet, the carriage was overturned, and the driver injured. It is claimed on the part to the plaintiff that the motorman could have stopped the car within the space of 8 feet of the vehicle, while on the part of the defendant the evidence tended to show that it could not be stopped in less than from 50 to 60 feet. It will thus be seen that the case turned largely, if not entirely, upon the ability of the motorman to stop a car moving at the rate of from six to nine miles an hour before the collision, and before the carriage in which the deceased was reding was overturned. The defendant's counsel excepted to the charge of the court with reference to the negligence of the deceased in case he drove upon the track when the car was anywhere from 35 to 80 feet away, and he requested the court to charge that he was not permitted to take even doubtful chances as to whether there was sufficient opportunity for him to cross. The court declined to charge that proposition, and the defendant's counsel excepted. The defendant's counsel also excepted to that part of the charge wherein the jury were instructed that there might be a recovery notwithstanding the fact that the deceased was guilty of negligence in driving upon the tracks, and he asked the court to instruct the jury that, in case they should find the deceased guilty of negligence in driving upon the tracks as he did, there could be no recovery in the action. The court refused to so charge, and the defendant's counsel excepted. It will be seen, therefore, that the jury were permitted to find a verdict against the defendant notwithstanding any negligence on the part of the deceased in driving upon the tracks, provided that they could find that the motorman could have stopped the car before it upset the carriage in which the deceased was riding.

The general rule is that an action to recover damages for personal injuries founded upon negligence it is incumbent upon the plaintiff to prove negligence on the part of the defendant and the absence of contributory negligence on the part of the injured party. The courts have, however, ingrafted upon this rule an important exception, which the learned trial judge evidently sought to apply to the facts in the case, and that is that the contributory negligence of the injured party which will bar an action in his behalf must be the proximate, and not a remote contributing, cause of the injury. The plaintiff's contributory negligence, it is said, must not only be a contributing cause, but a proximate, and not a remote, cause of the injury. The proximate cause of an event must be held to be that which, in a natural sequence, unbroken by any new cause, produces that event, and without which that event would not have occurred. The plaintiff's fault will not affect his cause of action unless it proximately contributed to his injury. It must be a proximate cause in the same sense in which the defendant's negligence must have been a proximate cause in order to give a right of action. Shear. & R. Neg. (4th Ed.) §§ 26, 94, and notes. Contributory negligence, however great, is no defense to an action for damages for an injury which was reckless, willful, or wanton. When the negligence of the deceased is but a remote cause, or antecedent of the injury, while the negligence of the defendant is made the proximate cause of it, then the plaintiff will not be debarred from prosecuting his claim by his negligence, nor will the defendant be excused from the consequences of his. 2 Thomp. Neg. § 1995, and notes.

The question in this case is whether this rule can be applied to the facts here in any reasonable or practical way. The contributory negligence of the injured party cannot be taken from the jury except in cases where it is clear that there was some new act of negligence on the part of a defendant that was the proximate cause of the injury. The negligence of the deceased, if any, was substantially concurrent with that of the defendant, if any. It is impossible to separate that part of the transaction which took place after the first contact of the car with the vehicle from what took place before. It was all one transaction, and to attempt to divide it into fragments, and impute one part of it to the negligence...

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