Mary Walsh, Respondent, v. Yonkers Railroad Company, Appellant

Mary Walsh, Respondent, v. Yonkers Railroad Company, Appellant. Second Department, July 24, 1906. Negligence of carrier — degree of care required from conductor of street car at grade crossing of steam railroad. In an action by a passenger on a street car to recover for injuries received at a grade crossing of a steam railroad where the conductor had gone ahead of the car to look for approaching trains and motioned the motorman to proceed, it is not error to charge that the law requires the conductor and motorman to exercise “tiie highest degree of care and prudence;” although reasonable care, to be determined by the. circumstances existing, is all that is required. The rule requiring the highest degree of care is founded upon a degree of imminent danger, which exists at such a crossing near a great city where trains are frequent. Appeal by the defendant, the Yonkers Railroad Company, from, a judgment of the City Court of Yonkers in favor of the plaintiff, entered in the office of the cleric of said court on the 1st day of February, 1905, upon the verdict of a jury for $500, and also from, an order entered in said clerk’s office on the 14th day of February, 1905, denyingthe defendant’s motion for a new trial made upon the minutes. Edward B. O'Brien, James L. Quackenbush, Bayard H. Ames and F. Angelo Gaynor, for the appellant. John F. Brennan, for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The plaintiff with others was standing on the front platform of the defendant’s electric street car owing to the crowded condition of the car. As it approached the crossing of a steam railroad, the conductor went ahead to see if a train was approaching, and beckoned the motorman to come on. He did so, but as the fender of his car reached the first rail of the steam railroad a train approached, the whistle blowing. The motorman reversed his car and it jumped back (as it is described by witnesses), barely avoiding a collision. The plaintiff claims that the violence of the reverse motion threw her off. There was some testimony that in the terror of the moment she like others on the front platform jumped off. There is an exception to the charge of the trial judge, that the law required the conductor and motorman to exercise “ the highest degree of care and prudence” in making the crossing. It was not necessary to charge this. Negligence is the absence of reasonable care. ■ What is reasonable care depends on the conditions of danger or lack of danger. In some cases very little care suffices to fulfill the rule of reasonable care while in others the highest degree of care is required to do so. All men understand this perfectly as a matter of fact, and it may well be left to juries (Whittacker v. Brooklyn, Queens County & S. R. R. Co., 110 App. Div. 767). But the charge of the learned trial judge was not error. If there be any case in which reasonable care calls for the highest degree of care it is the case of a street railroad crossing a steam railroad, especially near a great city where trains are frequent, as was the case here. I am cited to no case exactly in point, but the foundation of the rule of the highest degree of care is a degree of mminent danger which existed here (Stierle v. Union Railway Co., 156 N. Y. 70). The charge that if the plaintiff in the emergency acted on her best judgment in jumping from the car (if she did jump) she was not guilty of contributory negligence, is challenged on. the ground that her judgment instead of the judgment of a person of ordinary prudence is made the test. It suffices that no exception raised that fine question. The learned judge charged in one place that if the employees of the defendant were negligent the verdict must be for the plaintiff, but the charge afterwards .made that depend on the contributory negligence of the plaintiff, and the jury were not misled. No othereexception calls for a reversal. The judgment and order should be affirmed. Hirsohberg-, P. J., Hooker, Rich and Miller, JJ., concurred in the result. Judgment of the City Court of Yonkers modified by striking out the provision for an extra allowance for want of power to grant the same, and as modified judgment and order unanimqusly affirmed, without costs.