David E. Decker, Respondent, v. The Brooklyn Heights Railroad Company, Appellant

David E. Decker, Respondent, v. The Brooklyn Heights Railroad Company, Appellant. Negligence — collision between a police patrol wagon and a street car — injury to a policeman, in charge of the wagon but not the driver. In an action to recover damages sustained by the plaintiff, ia policeman, in consequence of a collision between one of the defendant’s street cars and a heavy patrol wagon which was in charge of the plaintiff and was being driven by ■another policeman, it appeared that the patrol wagon iwas traveling down grade at a high rate of speed in answer to a call, and that as it approached a street intersection the driver of the wagon, who was ringing the ratchet bell, saw one of the defendant’s cars from 30 to 100 feet away; that he whipped up his horses in an attempt to pass in front of the advancing car, but that the wagon was struck by the car and the plaintiff injured. The case was submitted to the jury upon the theory that the negligence of the driver might be imputed to the plaintiff. Held, that it was a question for the jury upon all the evidence whether the driver ■ was exercising the reasonable degree of care which the circumstances demanded, and that a verdict in favor of the plaintiff should be sustained. Appeal by the defendant, The Brooklyn Heights Railroad Com-', pany, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the icounty of Kings on the 23d day of February, 1901, upon the verdict of a jury for $3,125, and also from an order entered in said clerk’s office on the 21st day of February, 1901, denying the defendant’s motion for a new trial made upon the minutes. John L. Wells, for the appellant. Martin P. Lynch, for the respondent. [MAJORITY — Woodward, J.:] Woodward, J.: This action was brought to recover damages for a-personal injury sustained by the plaintiff in a collision with a car of the defendant at the intersection of Putnam and Central avenues, in Brooklyn. Plaintiff, a policeman, was in charge of a heavy patrol wagon driven by another policeman. They were coming down Putnam avenue upon a brisk trot, one of the horses galloping, as testified by one of the witnesses; they were going down grade, the ratchet hell ringing. The evidence is conflicting as to the position of the car, hut it is evident that the car was near to the crossing, running at about the usual rate of speed when the horses on the patrol wagon reached the curb line, and while in this position, the car from thirty to a hundred feet away, the driver whipped up his horses and attempted to pass in front of the advancing car. The preponderating evidence is that the car struck the wagon, back of the rear hub, shoving the wagon and fallen horses some distance and throwing the car, a light four-wheel car, from the track. The jury found the facts in favor of the plaintiff, and rendered a verdict for $3,125. From the judgment centered upon this verdict, and from an order denying a motion for a new trial, appeal comes to this court. The appellant urges but a single point upon this appeal, and that is that “ the facts presented permit of no other conclusion than that the accident was due entirely to the fault of the driver of the patrol wagon, and the defendant’s motion to dismiss the complaint should have been granted.” This accident occurred at a street intersection, where the rights of the parties were equal; the driver of the patrol wagon (whose negligence might, perhaps, be imputed to the plaintiff, and it was in this light that the question was presented to the jury by the charge of the learned trial court) was bound only to the exercise of that degree of care which a reasonably prudent man would or should have exercised in like circumstances, and we are of opinion that the evidence supports the conclusion that the driver did exercise the degree of care which was fairly to be expected of the driver of a patrol wagon. He was ringing the ratchet bell, he was driving in response to a call, and he had a right to assume that approaching street cars would be under control at street intersections. The evidence is that when within a few feet of the tracks of the defendant, the driver of the wagon saw the approaching car and whipped up his horses in an effort to cross ahead of the car. The jury had a right to take into consideration that the patrol wagon was acting in a public emergency; that it was, as is customary, being driven at a high rate of speed, and was going down grade, and the fact that the driver used the whip instead of attempting to stop the horses before they reached the track. It may have been prudent for the driver to attempt to pass over the' tracks rather than to try to bring the team with its heavy wagon to a standstill within the few feet which intervened between the tracks, and the horses at the moment of discovering the approaching car, and it was for the jury, with all the evidence before them, to determine whether the. driver was exercising that reasonable degree of care which the circumstances demanded. There was a conflict of evidence, the jury have resolved the facts 'in favor of the plaintiff’s contention, and the judgment should be sustained. The judgment and order appealed from should, be affirmed, with costs. Present — Goodrich, P. J., Woodward, Hirschberg, Jenks and Sewell, JJ. Judgment and order unanimously affirmed, with costs.