ROBERT DOOLING, an Infant, by AGNES DOOLING, His Guardian ad Litem, Appellant,
THE CITY OF NEW YORK, Respondent.
APPEAL by the plaintiff, Robert Dooling, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 24th day of May, 1911, upon the verdict of a jury, and also from an order entered in said clerk's office on the 20th day of June, 1911, denying the plaintiff's motion for a new trial made upon the minutes.
Robert Stewart [Ralph G. Barclay with him on the brief], for the appellant.
James D. Bell [P. E. Callahan with him on the brief], for the respondent.
JENKS, P. J.:
The action is for negligence. There was a verdict for the defendant at Trial Term which I think was not against the weight of evidence. The defendant's driver left the defendant's horse, attached to an ash cart, standing unfastened in a city street, and went into a house on that street. During his absence the infant plaintiff fell under the wheels of the cart while the horse was moving, and was injured. The plaintiff-appellant attacks the judgment mainly upon his exceptions to rulings of the learned court.
At the end of the charge plaintiff's counsel said: 'I ask your Honor to charge the jury that in determining the negligence of the city or the city's driver it is not what the butcher or the baker would do under ordinary circumstances, or an ordinarily prudent man, but that the leaving of a horse unfastened and unattended upon the public highway is prima facie evidence of negligence. The Court: I decline to charge that.' After disposition of another request the counsel for defendant, referring to the request now in question, said: 'I have no objection to the court charging as a legal proposition that the leaving of a horse unattended on the street is prima facie evidence of negligence, if the court will explain it to the jury. The Court: I will state to the jury what I understand the law to be. The leaving of a horse on the highway unattended requires the court as a matter of law to leave it to the jury to determine as a matter of fact whether or not it was negligence. Plaintiff's Counsel: That I except to. The Court: And the jury are permitted to find if an ordinarily prudent person would not do so, that it is negligence. Plaintiff's Counsel: I except to that also.' If the request had been confined to the proposition 'that the leaving of a horse unfastened and unattended upon the public highway isprima facie evidence of negligence,' an exception to a refusal thereof would have been well taken. (Doherty v. Sweetser, 82 Hun, 557; Pearl
v. Macaulay, 6 A.D. 70; Lane v. Lamke, 53 id. 395; Brand v. Borden's Condensed Milk Co., 89 id. 188; Gorney v. City of New York, 102 id. 260; Thomp. Neg. [2d ed.] § 1294, and cases cited.) But as the counsel united this proposition with another, the exception must be tested by consideration whether the entire request was sound, pertinent and not a reiteration. It was not the duty of the court to separate the good part from the bad part so that it could charge the former. (Hamilton v. Eno, 81 N.Y. 116, 127.) The verbiage of the request is explained by language theretofore used by the court, as follows: 'Counsel says that the grocer, the butcher and the milkman do the same thing, that the city should not be held to any higher obligation than those people.' The language of the request is, 'I ask your Honor to charge the jury that in determining the negligence of the city or the city's driver it is not what the butcher or the baker would do under ordinary circumstances, or an ordinarily prudent man,' and then follows the said proposition as to 'prima facie evidence of negligence.' Of course, the negligence was not to be determined by what the butcher or the baker would do, but was it not to be determined by what an 'ordinarily prudent man' would do under ordinary circumstances? It is plain enough that the clause 'under ordinary circumstances' may be also referred to the 'ordinarily prudent man' as well as to the butcher and the baker. Our Court of Appeals has said of 'negligence as used in the law': 'But no definition has yet been given, and it is obvious that none can be given, accurate and comprehensive enough to apply to the varying facts and circumstances of every case.' GROVER, J., writing for the court in Mangam v. Brooklyn R. R. Co. (38 N.Y. 457), said: 'Legal negligence is the omission of such care as persons of ordinary prudence exercise and deem adequate to the circumstances of the case.' Let us test the matter by inquiring whether the court could have rightly refused as erroneous in law a request that the negligence of the city or the city's driver was to be determined by what an ordinarily prudent man would do under ordinary circumstances? As the criterion named was the 'ordinarily prudent man,' it was not essential to qualify him again by the phrase 'as exercising ordinary prudence' or 'in
the exercise of due care' or the like, for the man to be considered is of that status perforce of the qualification already made. The further statement of the court was not erroneous. The court did not assume to comment upon prima facie evidence of negligence. It said that the element of leaving a horse on the highway unattended required submission of the case to the jury to determine as matter of fact whether it was negligence, and further said that the jury could find negligence if it concluded that this act of leaving the horse unattended was not that of an ordinarily prudent person.
It is contended that the exception was well taken to the refusal of the following request: 'I ask your Honor to charge also, your Honor did in substance, but to specifically charge, that if they find that the leaving of the horse unattended and unfastened upon the highway by the driver was the proximate cause and the sole cause of this injury that their verdict must be for the plaintiff.' But the leaving of the horse unattended and unfastened upon the highway by the driver might be the proximate cause and the sole cause of the injury, and still the verdict not necessarily be 'for the plaintiff,' inasmuch as the jury might acquit the defendant of negligence in leaving the horse unattended and unfastened, or might find or impute contributory negligence.
It is also insisted that the court erred in refusing to permit plaintiff's counsel to ask the witness Midwinter, the driver, 'Now, what was the occasion of your stopping at Ramouses once a week?' Midwinter had testified that on this occasion he had left his horse and cart and had gone into the water closet on the ground floor of the house wherein Ramous lived. Before this question was asked, he had testified on the cross-examination that he had known Ramous for 'quite a few years; ' that he had stopped at this house two or three times a week, each time for four or five minutes; that he had done this only one day or only one week--for that one week he had worked in that quarter of the borough, and that he had not stopped there for over eight months. His attention ...