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the circumstances and existing conditions, Mrs. Garside did the best she could to avoid the danger, and defendant's driver, seeing the situation, negligently continued on when he might have stopped, and ran against her as she backed to escape the danger in front, the jury was justified in finding that the action of Mrs. Garside was not such contributory negligence as would preclude a recovery. The rule of law is well settled that if a person by negligence gets into a place of danger, one seeing him in that position is bound to exercise care and caution to avoid doing him injury. The negligence of the one does not justify negligent acts by the other, knowing the situation, which if not done would avoid or obviate the danger and consequent injury. (In this subject the court charged the jury:
"If as Mrs. Garside moved from the car where she alighted, northerly, or even somewhat easterly, if she did, having looked, as she says, first south, and not seeing anything coming from that direction, she was confronted by an automobile as she moved northerly and easterly, coming south on the westerly car track of Sixth avenue, and it was so close to her that it made it necessary for her step backward to avoid it as it passed, and the driver of the defendant's automobile was then substantially up with her or near to her, and about to pass her, only three or four feet west of that car track—you heard the distance described, how far west it was it is for you to determine the distance, whether it was only three or four feet west of that car track. If the driver of that vehicle of the defendant could see that she was to be necessarily between the two automobiles as they passed each other within that narrow space of three, four, or five, or six feet, as the case may have been, and could see that an emergency existed in which the plaintiff, Mrs. Garside, was required to act quickly, and was required to avoid the automobile coming from the north, then if the driver of the defendant's automobile could and did see, or ought, in the exercise of ordinary care to have seen, that Mrs. Garside must move to avoid the one coming south, and that it was imminently dangerous to her to be inclosed between the two moving automobiles as they passed each other—the one moving north and the other south-on account of the narrow space in which she would be inclosed, and that in avoiding the one moving south she would probably be struck, or must be struck, by the one he was driving—if he could see that and did see it, or if, in the exercise of ordinary care and diligence, within the rules I have stated, he ought to have seen itthen it was his duty to stop the automobile he was driving, if he could, the moment he saw the dangerous and critical situation, if it was such. It is for you to say. If such was the condition, and Carey actually saw and apprehended the situation, or, in the exercise of ordinary care under the conditions and surroundings he ought to have seen and apprehended the situation and danger, and failed in his duty to stop the automobile when he might have done so, then the plaintiff, Mrs. Garside, was not necessarily guilty of contributory negligence which would prevent recovery, if she did the best she could in the emergency and under the circumstances, even if she did necessarily move backward to avoid the automobile going south, and in so doing made a mistake, if the automobile going south was there, and she may recover if you find the accident and injury to her was caused solely by the negligence of Carey, the driver of the defendant's auto, in not stopping the automobile before reaching her, when, in the exercise of ordinary care and caution under such conditions he ought to have done so, and might have done so, even if she erred in judgment in the dangerous position forced on her by Carey's negligence. If he saw Mrs. Garside in a dangerous situation, where she was liable to be injured by his going on past her, and he, in the exercise of ordinary care, could have stopped and avoided the accident, it was his duty to do so, and if he failed in that duty, then you may find he was negligent, and if you so find the facts to be, it would be your duty so to find. If negligent—and Mrs. Garside was not negligent under those conditions and that negligence of the defendant, or of the defendant's driver, caused the injury, the plaintiff is entitled to recover."
The general rule is stated in Saunders on Negligence (page 63) thus:
“Contributory negligence, however, will not disentitle the plaintiff to recover damages, unless it be such that but for such negligence the injury would not have been sustained; nor if the defendant might by the exercise of care on his part have avoided the consequences of the negligence of the plaintiff.”
He cites Tuff v. Warman, 2 Conn. B. (N. S.) 27, L. J. C. P. 322 (Ex. Ch.). In y Am. & Eng. Ency. Law, pp. 385-387, the rule is thus stated :
"And so when the negligence of the person inflicting the injury is subsequent to, and independent of, the carelessness of the person injured, and ordinary care on the part of the person inflicting the injury would have discovered the carelessness of the person injured in time to avoid its effects and prevent injuring him, there is no contributory negligence, because the fault of the injured party becomes remote in the chain of causation. In such a case the want of ordinary care on the part of the injured person is held not a juridical cause of his injury, but only a condition of its occurrence.
* And upon the principle that one will be charged with notice of that which by ordinary care he might have known, it is held that, if either party to an action involving the questions of negligence and contributory negligence should, by the exercise of ordinary care, have discovered the negligence of the other after its occurrence in time to foresee and avoid its consequences, then such party is held to have notice; and his negligence in not discovering the negligence of the other, under such circumstances, is held the sole proximate cause of a following injury. But if, in the exercise of ordinary care, the one party would not have discovered the negligence of the other in time to avoid the injury, the rule just stated has no application; and it is only when the negligence of one party is subsequent to that of the other that the rule can be invoked.” See the cases there cited.
In the case now under consideration Mrs. Garside, on defendant's theory, was facing northeast, as if to cross to the east side of Sixth avenue. Her back was to the south, and as one of defendant's witnesses puts it she had not been off the car a quarter of a minute. The gasoline automobile was coming south, following the car from which she alighted, and suddenly confronted her, and “tooted” its horn. All this the driver of defendant's vehicle saw, or ought to have seen, the jury were authorized to find. She must avoid it by stepping back, or stopping, if far enough away from the track on which it was proceeding. The jury was justified in finding that, seeing her in that position and place, it was negligence for the driver of defendant's vehicle to go up to and attempt to pass her at that time, thus inclosing her between the two automobiles. And if he did, and she was in peril from the one, and in escaping it was to be in peril of the other, and that other saw the situation, and proceeded on when he might in the exercise of ordinary care have stopped, it was negligence not to do so, or at least the jury were justified in finding, under all the circumstances, that it was negligence. The question was submitted to the jury. If so, and Mrs. Garside by such negligence of defendant was put in that perilous position, and required to act quickly, an error of judgment in stepping too far back would not be such negligence as would defeat recovery.
In Grand Trunk Railway Co. v. Ives, 144 U. S. 429, 130, 12 Sup. Ct. 679, 687, 36 L. Ed. 485, the Supreme Court of the United States stated the rule thus:
“Without going into a discussion of these definitions, or even attempting to collate them, it will be sufficient for present purposes to say that the generally accepted and most reasonable rule of law applicable to actions in which the defense is contributory negligence may be thus stated: Although the defendant's negligence may have been the primary cause of the injury complained of, yet an action for such injury cannot be maintained if the proximate and immediate cause of the injury can be traced to the want of ordinary care and caution in the person injured, subject to this qualification, which has grown up in recent years [having been first enunciated in Davies v. Mann, 10 M. & W. 546], that the contributory negligence of the party injured will not defeat the action if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the injured party's negligence. Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 558, 11 Sup. Ct. 653, 35 L. Ed. 270, and cases cited; Donohue v. St. Louis, etc., Railroad, 91 Mo. 357, 2 S. W. 424, 3 S. W. 848; Vicksburg, etc., Railroad v. Patton, 31 Miss. 156, 66 Am. Dec. 552; Deans v. Wilmington, etc.. Railroad, 107 N. C. 686, 12. S. E. 77, 22 Am. St. Rep. 902; 2 Thompson on Negligence, 1157; Cooley on Torts [1st Ed.] 675; 4 Am. & Eng. Enc. Law, tit. 'Contributory Negligence,' 30, and authorities cited in note 1.”
See, also, the following cases: Costello v. Third Av. R. Co., 161 N. Y. 317–322, 55 N. E. 897. It was for the jury to say whether the defendant's driver might not have avoided the consequences of Mrs. Garside's negligence in approaching the track, if she did, by the exercise of reasonable care and prudence. Grand Trunk R. Co. v. Ives, 144 U. S. 409-429, 12 Sup. Ct. 679, 36 L. Ed. 485; Haley v. Earle, 30 N. Y. 208; Button v. H. R. R. Co., 18 N. Y. 248.
To the charge as made, and above quoted, defendant's counsel excepted as follows:
“Mr. McIntyre: 'Even though she made a mistake' were the words I desire to take exception to; that portion of the charge that if there was a mistake made, then there was no evidence of contributory negligence."
The court then recharged on the subject as follows:
"The Court: No, I did not say that. I said it was not necessarily contributory negligence. If she was there in that situation, going along as she had the right to do, and that car came down on that westerly track at the speed some of the defendant's witnesses say it did come, and came suddenly upon her, and there was an emergency, and she did the very best she could under the circumstances, if she acted with due care and caution under those conditions and circumstances, then it was not necessarily contributory negligence for her to step back and avoid it. And if she was in that situation, and the driver of the defendant's car saw her there, and saw that rapidly moving automobile coming down and one witness said, I think, that it went 'whizzing' by—if that was true, if you so find it to be, then, of course, it was his duty, she facing in that direction, as she had the right to face, if she was going northeasterly, if to avoid that automobile she stepped back, and the driver of defendant's car saw her in that position, and saw that car coming and saw that she would necessarily be between the two, and his nearness to the railroad track was such that she would probably necessarily be hit by one or the other, then it was his duty to stop; and even if she made a mistake in stepping back, if it was necessary to step back at all-if she made a mistake and stepped too far—and the defendant's driver was guilty of negligence in not stopping the automobile when he could see the situation, or when he ought to have seen it, if you so find—if she made a mistake, it such conditions existed, and it is for you to say what the conditions were under the evidence of the defendant's witnesses her action was not necessarily negligence. You have heard them testify, some of them, that this car from which she alighted, at the time this accident occurred, stood there dead still, and then some of the other witnesses have testified that it had gone on, and
that this car on the same track came down whizzing past. Is that true? Had it gone far enough so that that car came down and whizzed past with those easterly tracks blocked? You will think about it and consider it, and determine just what the facts are. It is for you to say, under all those circumstances.”
To this no exception was taken. In the same connection and on the same subject the court also charged:
“Mr. McIntyre: May I ask your honor to charge that if the operator of the defendant's automobile, Carey, stopped his car as soon as he could after having seen Mrs. Garside step backwardly, there was no negligence on the part of the defendant."
“The Court: It is for you to say whether he did see her step backwardly or not, or whether the automobile caught on to her and pulled her back. If she stepped backwardly, then if he stopped his automobile as soon as he could, and if he was not, under the circumstances and conditions, proceeding at a negligent rate of speed, and was not negligent in not looking about him and not seeing her soon enough—if all that is true, then, of course, he did his duty, and defendant is not liable, and the question is what were the circumstances and conditions under which he proceeded."
"Mr. McIntyre: I think your honor did charge that if the jury found that was an unavoidable accident the defendant must have a verdict. I think your honor charged that."
"The Court: Yes. Is there anything further?”
The jury was repeatedly told that the driver of defendant's automobile must have seen Mrs. Garside, and must have had time to stop, and negligently failed to do so.
It seems to me clear that the question of Mrs. Garside's contributory negligence was fairly submitted to the jury, for it was charged expressly:
"If the injury was due to an unavoidable accident, which could not be avoided by the defendant, the defendant is entitled to your verdict. If the plaintiff backed into the automobile without looking to ascertain if it was approaching, she was guilty of contributory negligence, and your verdict must be for the defendant. If the jury find that she became alarmed at the approach of an automobile from the north, and then backed into the defendant's auto, she cannot recover. If that is actually and baldly true, she cannot recover. If she simply became alarmed and backed into it; if you find that she became alarmed at the approach of an automobile, and backed into the defendant's automobile, she cannot recover. I have described the conditions under which, even if it was approaching her, she could recover. If she was guilty of contributory negligence in the slightest degree, she cannot recover. I charge you that. When the operator of the defendant's automobile discovered that the street was blocked or impassable, he violated no law or city ordinance by going from the east side to the west side, but he had a right to cross provided he operated the cab in a careful and prudent manner. I so charge, if under all the circumstances and conditions there existing he went with due care and caution and prudence where he did. If there was a necessity for it, while it would not be in accordance with the terms of the ordinance, still he would have a right to do it.”
The jury was also told that “the plaintiff was not, as matter of law, bound to look both ways before crossing the avenue,” that is before crossing from the car from which she alighted to the sidewalk. The court added to this instruction the following:
“I have so charged, and I charge it again. It is a question of fact for you to consider and determine whether in the exercise of due care she ought to have done it."
And before that:
“She was bound to be cautious and watchful in seeing, as I have stated; and the greater the danger or the complications about her that she could see or understand, or ought to have apprehended, then, of course, the more careful and watchful she was required to be.”
“Mrs. Garside was also under the duty to look about her, and note the conditions plainly to be seen and those reasonably to be apprehended, and proceed with the expedition and care and caution demanded by such conditions.”
Defendant's counsel excepted to the charge in regard to looking both ways as follows:
"I desire to except to that portion of your Honor's charge wherein you say that the plaintiff was not bound to look both ways when she was alighting from the car.”
The court then said and charged:
"I did not say that. I did say, and I say again, that she was not bound, as a matter of law, to look both ways. The law did not impose any such absolute duty on her. It is a question for you, in the exercise of reasonable care and caution, what ought a person to do on and after alighting from a car; and I have stated to you that it is their duty to exercise their senses, to look and listen. Just where they shall look and how they shall look depends on the surrounding circumstances, and it is for you to say what she ought to have done there in the exercise of due care, and what she did do. She says she did look both ways. It is for you to say whether she did or not.”
To this no exception was taken. The charge on this subject was correct. Moebus v. Herrman, 108 N. Y. 349, 15 N. E. 415, 2 Am. St. Rep. 440; Elliott, Roads & Streets (2d Ed.) 912, § 835; Williams v. Grealey, 112 Mass. 79; Shapleigh v. Wyman, 134 Mass. 118; Stringer v. Frost, 116 Ind. 477, 19 N. E. 331, 2 L. R. A. 614, 9 Am. St. Rep. 875; Hennessey v. Taylor, 189 Mass. 583, 76 N. E. 224.
In Moebus v. Herrman, supra, the court said:
“The duty imposed upon a wayfarer at the crossing of a street by the track of a railroad to look both ways does not, as matter of law, attach to such person when about to cross from one side to the other of a city street. The degree of caution he must exercise will be affected by the situation and surrounding circumstances. In the former case there is obvious and constantly impending danger, not easily or likely to be under the control of the engineer; in the latter the vehicles are managed without difficulty, and injuries are infrequent."
It is quite true that there may be cases where it should be and would be held as matter of law that to enter upon and attempt to cross a crowded city street where vehicles were numerous without looking both ways was negligence. Such was the case of Barker v. Savage & Gormley, 45 N. Y. 191, 6 Am. Rep. 66. But here no such or similar conditions existed, no vehicles were near, the avenue was not crowded, and there was a city ordinance, of which Mrs. Garside presumably had knowledge, reading as follows:
“It shall not be lawful for any vehicle to be driven or propelled around a corner of any of the streets or avenues of said city traveling at a faster gait than at the rate of three (3) miles an hour, and all and every such carts and all other vehicles when passing through or along any of the streets or