Bryant S. Palmer and Bertha E. James, as Administrators, etc., of Floyd T. James, Deceased, Respondents, v. Larchmont Horse Railway Company and Port Chester Street Railway Company, Appellants

Bryant S. Palmer and Bertha E. James, as Administrators, etc., of Floyd T. James, Deceased, Respondents, v. Larchmont Horse Railway Company and Port Chester Street Railway Company, Appellants. Negligence—evidence that a street-ca/r conductor waslaughing andtalking with passengers, held to he incompetent as proof of his negligence where the collision complained of was attributable to the negligence of the motorman. An action brought to recover damages resulting from the death of the plaintiffs intestate, who, while driving upon a public highway, was killed in a collision with one of the defendant’s trolley cars, was based, chiefly, if not solely, upon the alleged negligence of the motorman. Upon the trial the plaintiff was allowed to give evidence tending to show that just previous to the accident the conductor was laughing and talking with some of the passengers. The evidence was received without limitation, and at the close of the trial the court refused the defendant’s request that the jury be instructed that “there is no evidence in the case to warrant the jury in finding that the collision was due at all to any negligence of the conductor.” Held, that a judgment entered upon a verdict in favor of the plaintiff should be reversed, as the jury might have been misled into believing that the behavior of the conductor constituted negligence and inattention to his duties, rendering the defendant liable; That if the evidence of the behavior of the conductor was not received as proof of negligence on the part of the conductor, the defendant was entitled to have . the jury so informed. Appeal by the defendants, the Larchmont Horse Railway Company and another, from a judgment of the Supreme Court in favor of the plaintiffs, 'entered in the office of the clerk of the county of Westchester on the 18th day of February, 1903, upon the verdict of a jury for $8,000, and also from an order bearing date the 4th day of February, 1903, and entered in said clerk’s office, denying the defendants’ motion for a new trial made upon the minutes. Isaac N~. Mills, for the appellants. Arthur O. Palmer, for the respondents. [MAJORITY — Hirschberg, P. J.:] Hirschberg, P. J.: A number of questions are presented upon this' appeal, but in the view taken one only requires determination. The plaintiffs’ in testate, while driving upon a public highway in the town of Mamaroneck, was killed in a collision with a trolley car on a line of road claimed to be operated by the defendants jointly. The negligence chiefly if not solely ascribed to the defendants was that of the motorman who was in charge of the car at the time of the accident. But considerable evidence was given by the plaintiffs upon the trial to the effect that just previous to the accident and at the time of its occurrence the conductor was talking and laughing with some friends of his who were passengers upon the car. There is nothing in the record to indicate that the attention of the jury was at any time called to the fact that this evidence was received under any limitations which would negative the suggestion that they might regard it as proof of inattention to his duties on the part of the conductor which might be chargeable to the defendants as negligence. The learned counsel for the defendants requested the court to charge the jury that “ there is no evidence in the case to warrant the jury in finding that the collision was due at all to any negligence of the conductor.” This request was refused, and an exception was taken. The learned counsel for the respondents alleges in his brief that no claim was made upon the trial that the decedent was killed through the conductor’s negligence, and asserts that “ the, proof that Hess, the conductor, was engaged in conversation with Baldwin and Bauman, and that they were laughing down until the time the car came to a full stop, was offered to show that neither of the three heard anything to indicate danger and did not know that any danger was to be apprehended until the car had come to a full stop.” As I have said, it does not appear that the evidence was offered for the purpose stated, and the refusal to charge as requested might well be regarded by the jury as equivalent to an instruction that they might find for the plaintiffs if they considered the conductor to have been negligent in talking and laughing with the passengers when by an alert attention to his duty he might have done something to avert the disaster. If the evidence given of his behavior was not intended to charge the conductor with. negligence, the defendants were clearly entitled to have the jury so informed. It cannot be said that the jury was not misled, for even the court will sometimes regard the behavior of a conductor as proof of negligence where, upon review, no connection with the accident will be deemed deducible from it. (See Monroe v. Metropolitan Street R. Co., 79 App. Div. 587, 589.) As the terms of the submission of the case permitted the jury to speculate upon the effect of negligence which did not exist in fact, and the verdict may have been thereby influenced, a new trial is required. The judgment and order should be reversed. All concurred. Judgment and order reversed and new trial granted, costs to abide the event.