Dipaolo v. Third Avenue Railroad , 67 N.Y.S. 421 ( 1900 )

Patterson, J.:

- The plaintiff, a sweeper in the employ of the street cleaning department of the. city of New- York, while at work sweeping between the rails of one of the tracks of the defendant’s road on Park Row, was injured by being struck, as he alleged, by one of the defendant’s cars. At the time he w;as struck he was bending over in the act of sweeping, facing to the south. He was hit in the forehead, the car approaching him from in front. On the trial, he and another witness swore positively that it was a car of the defendant by which he was struck ; while, on the contrary, the defendant’s servants in charge of the car identified by the plaintiff’s witnesses as the one which injured him, swore-that that car passed by the plaintiff without touching him, and that he was hit by a beer wagon. On this issue the finding of the jury in the plaintiff’s favor, should not be disturbed. There were facts and circumstances also in evidence which permitted the jury to find freedom from contributory negligence of the plaintiff.

The only matters requiring consideration on the appeal from the judgment arise from criticisms made of the charge of the trial justice and his refusal to instruct the jury specifically as requested by counsel for the defendant.

It is claimed that the justice did not sufficiently define to the jury the nature of contributory negligence, and that, in view of his omission to do so in his charge, it was error to refuse to give to the jury the instructions referred to, as they were necessary to supply the supposed insufficiencies of the charge. The plaintiff had testified that he was bending over at his work, facing to the south, when a north-bound car of the defendant struck him; the bell or gong of the car was not sounded, and no signal of its approach was given. A ■car had passed by him half a minute before and he had stepped aside to avoid it, and when it had passed returned to the track, relying upon the sounding of a gong should another car approach. The plaintiff, by the necessity of his employment, was compelled to work on this thoroughfare under the condition of the defendant’s cars running at half a minute headway. He had been working as a street sweeper in and about the defend-ant’s tracks for some two years, and it was the custom of the motorman to sound a gong as cars were approaching street sweepers ■on the tracks. The trial justice in his charge stated to the jury what the plaintiff claimed, namely, that he was injured without negligence on his part and solely through the negligence of the defendant, and he instructed the jury that it was necessary for them to determine, before there could be a recovery, whether the plaintiff was injured without negligence on his part; and he further instructed them that it was the duty of the plaintiff to sweep the street, arid as a street sweeper he had a right to be where he was and that he' was bound to use “ ordinary care,” and that the defendant was also bound to use “ ordinary care ” in not running him down, and, therefore, he submitted it to the jury to determine under what circumstances the accident happened. No exception was taken by the defendant to the charge of the judge, but its counsel requested the court to charge as follows: In respect to looking and listening, I ask your Honor to charge that the plaintiff was bound to look and listen for the approach of cars and to exercise reasonable care to avoid' them andi get out of their way.” The court declined to charge otherwise than, it had already done, and" an. exception was taken. That was, in substance, a request to charge the jury the general rule of law applying to pedestrians approaching railway tracks. That rule, in its. broad statement, does not apply to persons whose duties in the public service require them to work in or upon car tracks upon a public-street. In Smith v. Bailey (14 App. Div. 263) it was held that a. street sweeper employed in the public service cannot exercise the-same care while in the street as an ordinary pedestrian can, but is. bound to use reasonable care to avoid being run over. In Bengivenga v. Brooklyn Heights R. R. Co. (48 App. Div. 515) á workman engaged in repairing a street was struck without warning by a-car following one for which he had made way, under circumstances, very similar to those appearing in the proof here, and the court said that under ordinary circumstances the plaintiff would be held to have been guilty of contributory negligence, as a matter of law, had he beeiu a traveler upon the highway; but that the defendant was chargeable- with notice that workmen were upon the track at this point and were required to be in order that the work might proceed; that it was evident that the operation of the cars created a condition in which the plaintiff and those engaged upon the improvement were, required to work in the intervals between the moving cars upon the track, and that under such-circumstances they would remain thereon, many times until the car came very close to them, The condition, was one under which the person operating the car was required to-exercise extreme care.for the protection of the workmen, and the proof - authorized a finding that no warning of any description was-given of the approach of the car, and that the plaintiff was working-under conditions which gave hi/m the right to assume that warning-would be given, and "that the plaintiff might rely upon the presumption that the operator of the car would stop the same at the point-where he was struck.

- In the case at bar the conditions were , very similar to those in the-case last cited. The plaintiff was working upon the north-bound track, a car passed him, and he immediately resumed his work upon, the track, and had the right to assume that some notice of the, ■ approach of another car would be given him. But-even-if he had. not, it was for the jury to say whether, under the circumstances, he was bound to look and listen. The request made of the justice was, that he should charge, as matter of law, that the plaintiff was bound to look and listen for the approach of cars and to exercise reasonable care to avoid them. As the request with reference to reasonable care was coupled with that request for a positive instruction as matter of law as to the duty of the plaintiff to look and listen under the conditions proven the whole request was unavailing.

The second request was that “ the requirements of law with respect to looking and listening for' an approaching car are not satisxfied by the mere 'physical act of looking and listening, but something further is required, to wit: That after having looked and listened, the person should act upon the knowledge thus gained and endeavor with reasonable care to avoid an accident.” That request requires no further consideration in view of what has already been said.

The third request was “ that the plaintiff * * * was bound to use care commensurate with the dangers and risks of the situation.” The court had already charged that the plaintiff was bound to exercise ordinary care, which, of course, referred to the conditions under which he. was at the time working, and that measure of care, namely, ordinary care, is only another way of stating that it was the duty of the plaintiff to exercise reasonable care to avoid injury. The charge in this respect was sufficiently explicit without amplification and stated the proper rule.

The court was also requested to charge : “ If yon think that the' plaintiff was at all to blame for this injury, or for the accident, your verdict must be for the defendant.” That was but another way of stating what the court had already charged and submitted to the jury, viz., whether the plaintiff was injured without negligence on his part. The verdict was not against the weight of evidence; the instructions given were sufficient to present the case fairly to the jury, and the amount of the verdict is not excessive but moderate.

The judgment and order appealed from must be affirmed, with costs.

Van Brunt, P. J., Rumsey, Ingraham and Hatch, JJ.

Judgment and order affirmed, with costs.