Maria Schron, as Administratrix, etc., of George Schron, Deceased, Respondent, v. Staten Island Electric Railroad Company, Appellant

Maria Schron, as Administratrix, etc., of George Schron, Deceased, Respondent, v. Staten Island Electric Railroad Company, Appellant. Negligence—parties engaged in a joint occupation are liable for the negligence of each other — duty of a motorman to stop his ear, if possible—proof as to signals. In an action brought to recover damages for the death of the plaintiff’s intestate resulting from the alleged negligence of the defendant, the evidence adduced on the part of the plaintiff tended to show that the deceased was in company with his son riding upon a' wagon between the rails of the easterly track of the defendant’s railroad, at some distance behind a covered truck which shut off the view of cars approaching on the westerly track; that the deceased’s son, who was driving, wishing to proceed faster, listened for the ringing of the bell on any car which might be approaching on the westerly track, and, hearing none, turned upon it; that when the head of his horse was about at the seat of the truck, he observed a car, about 125 feet away, approaching at a rapid rate on the westerly track, but, instead of turning off the track to the west, as he might have done, he attempted to pull up and wait until the truck had passed and then go back upon the easterly track, but before he could do this, the car struck the wagon and the deceased received the injuries which resulted in his death. Evidence was given tending to establish the fact that no bell was-rung upon the approaching car until it was upon the point of striking the wagon. Held, that the horse and wagon being used for the purpose of moving goods, in which business both the deceased and his son were employed upon the day of the accident, the deceased and his son were engaged, in a joint occupation and venture; that, consequently, if the negligence of either contributed to the accident, the plaintiff was not entitled to recover; That, upon the evidence, the question as to the contributory negligence of the deceased and of his son should have been submitted to the jury; That, if the car was 125 feet away when the wagon turned upon the westerly track, it was clearly within the power of the motorman to have stopped it and to have permitted the wagon to pass in safety, and that his failure to do so was sufficient to sustain a finding of negligence; That, under the facts of this case, the defendant was not entitled to .a charge to the jury that they could not find that the bell upon the car was not rung, on the ground that the defendant’s evidence was positive and the plaintiff’s evidence merely negative on this point. Semble, that if, as the defendant contended, the Wagon was turned on the westerly track when the car was only ten feet away, the driver of the wagon was guilty of contributory negligence. Appeal Tiy the defendant, the Staten Island Electric Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 31st day of October, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of December, 1896, denying the defendant’s motion for a new trial made upon the minutes. The action was brought to recover the damages resulting from the death of the plaintiff’s intestate which occurred by reason of a collision between the wagon on which he was- riding and one of the defendant’s motor cars. William, H. DyTtmcm, for the appellant. T. F. Hamilton and FramJk H. Smiley., for the respondent. [MAJORITY — Hatch, J. :] Hatch, J. : The son of tire deceased and the deceased were both upon the wagon when the accident happened, and had been for some time prior thereto. Both were engaged in moving goods, for which purpose the' horse and vehicle were used, and they were so occupied upon that day. They were, therefore, engaged in a joint occupation and venture, and each became liable for the negligence of the other. (McCormack v. Nassau Electric R. R. Co., ante, p. 24.) If either were negligent in a manner contributing to the injury, it would furnish a sufficient answer to plaintiff’s- right to recover. ' From the evidence the jury were authorized to find that the deceased and his son occupied the same seat upon the wagon, the latter driving the horse. They were driving north along Bay street, in Tompkinsville. In this street the defendant has double tracks. The wagon was being driven between the rails of the easterly track. In front of the wagon was a horse and buggy, and in front of that was a covered double truck which was proceeding at a very slow rate. These vehicles had occupied their respective positions for a distance of about 800 feet. As stated upon the argument, the space to the right of the easterly track, between it and the curb, was not wide enough to permit of the wagon passing by the other vehicles upon that side. The double truck in front had its back curtain down, and the vehicle and top prevented a view of the track and approaching cars on the westerly side. The driver of the buggy, after proceeding the 800 feet, turned out to the west and drove ahead of the double truck. The son of the deceased being desirous of proceeding at a faster rate, also turned from the track to the west, which brought him upon the westerly track of the railroad.' When he came upon the track and had reached a point where the head of his horse was about opposite the seat of the double truck, he discovered ' a car approaching him at quite a rapid rate and distant about 125 feet. The space to the west of the westerly track was sufficient for the wagon to drive by and clear the car. The other method to escape the car was to pull up and allow the truck to pass and turn again into the easterly track. The latter is what the driver attempted to do, and succeeded in getting the horse and front part of the wagon off of the westerly track, when the car struck the rear part of the wagon, throwing the deceased from the wagon and inflicting injuries from which he subsequently died. The son of the deceased testified that before he turned to go upon the westerly track, he listened for the ringing of a bell; that he did not stop for that purpose, but that he did give attention to it and heard no bell. There was other evidence tending to establish that no bell was rung upon the car as it was approaching, and not until it was upon the point of striking the wagon. Upon these facts we are of the opinion that the question of contributory negligence on the part of the deceased and his son became a question of fact for the jury. The case made by the defendant upon this point was to the effect that the horse and wagon were turned on to the track when the car was only ten feet away: If this were the fact, then the driver was clearly guilty of contributory negligence. But upon this point the evidence was conflicting, and we are unable to say, as a legal conclusion, that the evidence of the defendant was controlling upon this point, or that the evidence of the plaintiff was improbable or so inconsistent as to have warranted the court in deciding the question. It became a matter for the jury to determine, and the court submitted the question to them in a charge entirely unexceptionable, and their finding is conclusive upon us. • If the car was 125 feet away when the wagon was turned into the westerly track, and the jury were so authorized to find, then, upon the testimony of the defendant as well as the plaintiff, it was clearly within the power of the motorman to stop his. car and permit the horse and wagon to clear the track. It. became the .duty of the operator of the car so to do, and his failure in this regard was sufficient upon which to predicate negligence. (Fishbach v. Steinway Ry. Co., 11 App. Div. 125.) This conclusion does not bring us in conflict with Meyer v. Brooklyn Heights R. R. Co. (9 App. Div. 79). In that case the plaintiff drove in a diagonal direction towards a. car approaching him, which was in his plain view for 150 feet. There was no cross street at the point, and no obstruction which prevented his turning to either side of the street. We held that the plaintiff was guilty of contributory negligence and exonerated the defendant from negligence, upon the ground that it was the duty of the former to have turned off the track, and that the latter was not bound to anticipate that he would not do so. The distinction between the cases is clear. No error was committed in the court’s refusal to charge the jury, in the language of. the counsel, that the jury could not find that the bell upon the car was not rung. The request proceeded upon the assumption that plaintiff’s evidence upon this point was negative merely, that the witnesses did not hear the bell, and that the defendant’s evidence was positive and affirmative that the bell was rung. The evidence in the case did not warrant the charge requested. The testimony given by the son was to the effect that he gave the matter attention, and that he.heard no bell; that-he listened for it; that it did not ring until just before the wagon was struck. Two other witnesses, swear that they heard no bell, and each was in a position to hear the bell if it was rung. This, we think, was sufficient to justify the court in refusing the charge requested. (Greany v. Long Island R. R. Co., 101 N. Y. 419.) We find, no- ground warranting a disturbance of this judgment; it should, therefore be affirmed, with costs. All concurred, except Bartlett, J., not sitting, Judgment and order unanimously affirmed, with costs.