Keck v. Sandford , 51 N.Y. St. Rep. 150 ( 1893 )

McGown, J.

After the testimony had been closed, and the trial justice had charged the jury, defendant’s counsel made the following request:

“ Defendant's counsel: I would like your honor to charge the jury that the fact that the driver of the express company was driving fast, as has been testified to in this case, is not sufficient of itself to establish negligence, and to charge the defendant with the consequence of negligence.

“The court: I decline so to charge.”

The request was to charge that driving “ fast, as testified to on the trial,” was not sufficient to establish negligence.

The only evidence on the trial as to the rate of speed defendant’s driver was driving is that of the plaintiff, who testified “that he, defendant’s driver, was driving fast”

Ernest Deltz, a witness on the part of the plaintiff, testified that “the Adams express wagon was'being driven so rapidly as to attract my attention.” And “ I do not think it took me a second to get up to him; he was going at a pretty fair gait. Running, it would, take me about eight seconds to get from my house, 84 to 78. At the time of the accident I was where 78 is, on the ground, on the sidewalk; the first thing I saw was this Adams express wagon going by me at 86 ; I went to 78 and stood and saw the accident, and then ran after the Adams express wagon and stopped at opposite 76; I am certain of it; will swear to that.”

And “ that the Adams express wagon was not going very fast.”

“ Q. And at the time he struck, Adams express wagon was being driven rapidly ? A. Yes.”

Defendant’s witness, Henry Carey, testified that “ the rate of speed at which the Adams express wagon was going was nothing extra,” and on cross-examination, that “ the express wagon was travelling, not anything slow, but at a fair gait, too.”

Defendant’s witness, Charles O’Rourke, the driver, testified: “ I was going up Stanton street at a pretty slow gait.”

Henry Manning, a witness for defendant, testified that “ the express wagon was not going fast at all, but on an ordinary trot.”

There was no evidence to show that defendant’s driver was driving at an unlawful rate of speed.

We think that it was error on the part of the trial justice in refusing to charge as requested, and that the request was a proper one, as it bore on a material question in the case, namely, the negligence of the defendant’s driver, as evidence was given on the part of plaintiff as to the rate of speed defendant’s wagon was being driven, and we cannot say whether it did or did not mislead, but such refusal may have misled the jury, upon that particular point; inasmuch, if they believed the testimony of the witnesses as to the rate of speed the wagon was being driven, as such might have affected the minds of the jury, and led them to bring in their verdict in favor of the plaintiff.

Even had the evidence been clear that defendant’s wagon was being driven fast, that fact alone was not sufficient to support any finding of negligence on the part of the defendant, unless the wagon had been driven at an unlawful rate of speed, a rate of speed forbidden by law, or ordinance, in which case there would be a presumption of negligence on the part of the driver.

In Crocker, etc., v. Knickerbocker Ice Company, 92 N. Y., 652, the evidence was that the driver was driving the team at “a lively trot,” the court say: “ It cannot be held, as matter of law or fact, that merely driving at the rate of speed stated, in the streets of a city, is negligence. Persons driving in the streets of a city are not limited to any particular rate of speed; they may drive slow or fast, but they must use proper care and prudence so as not to cause injury to other persons lawfully upon the streets.” There was no proof in this case, or, at least, not sufficient proof for submission to the jury, that the team was driven carelessly or that the driver was negligent.”

The judgment and order, herein appealed from, must be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Van Wyck and Fitzsimons, JJ., concur.