and 134 New York State Reporter just north of the middle of Forty-Fourth street, and the automobile came to a stop before it reached the westerly track. There is no substantial conflict in the evidence as to the course pursued by the automobile. The testimony of the other witnesses called by the defendant, however, tends to show that the plaintiff's course was about along the center line of Forty-Fourth street; that the point of collision was about between the two tracks, and at about the center, or a little north of the center, of Forty-Fourth street, and that it moved only 3 or 4 feet after the collision. The other witnesses called by the plaintiff testified, in substance, that he was riding north of the center line of Forty-Fourth street; that the collision occurred on the southbound track, or just west of the westerly rail thereof; that as the automobile reached Forty-Fourth street it swerved suddenly to the left, and at the time of the collision was faced in a westerly or northwesterly direction; that the plaintiff was knocked off the wheel to the right, and was shoved along the asphalt by the automobile from 6 to 8 feet toward the northwest corner of the street; that when the automobile came to a stop, the rear wheels were on the south-bound track, and the front wheels on the asphalt to the west. No witness, excepting the plaintiff, testified to seeing the moving van. The carriageway of East Forty-Fourth street between the curbs is 30 feet wide, and that of Madison avenue is 42 feet wide. The easterly curb line of Madison avenue is 23 feet from the building line. The easterly rail of the north-bound street railway track is 13 feet 6 inches from the easterly curb. The block between Forty-Third and Forty-Fourth streets is 200 feet long. The block bounded by Forty-Fourth street, Vanderbilt, Forty-Third street, and Madison avenue was then vacant, and inclosed by a picket fence 5 feet 9 inches in height. This fence along Madison avenue was 8 feet 2 inches west of the building line. The pickets were 3 inches wide, and spaced 234 inches apart, and were pointed at the top. The fence partly obstructed the view from FortyFourth street down Madison avenue and vice versa, unless, of course, the line of vision was above it. The evidence does not show that the chauffeur attempted to look through or over the picket fence into West. Forty-Fourth street, nor does it show that the plaintiff attempted to look through or over it into Madison avenue. Testimony was given by witnesses called by the defendant tending to show that the plaintiff was riding at a speed of about 8 miles an hour, and the chauffeur testified on that subject "the boy was going as fast as I was, probably faster." With the exception of the testimony of the chauffeur, there is no specific evidence of the relative distance of the bicycle and automobile as they approached the crossing, from the point where their routes would have intersected, had they continued on their respective courses. One witness called by the defendant, who was a passenger on a south-bound street car, seated on the rear platform seat facing north, testified that the street car passed the automobile about one-third of the length of the block below FortyFourth street; that just after passing it, and when the street car was about in the middle of the block, he looked through the picket fence, and saw the plaintiff about 15 feet east of the easterly fence line of Forty-Fourth street, and, apprehending an accident, he alighted from the car, and went back and heard the plaintiff say, in answer to an inquiry from a policeman as to whether he wanted the chauffeur arrested, "No; it was not his fault." This witness does not locate the position of the automobile at the time he first saw plaintiff. The plaintiff admits that he answered the policeman's inquiry in the negative, but he denies that he stated that the chauffeur was not at fault. Evidence was adduced on the part of the plaintiff tending to show that the automobile could have been stopped in from 12 to 15 feet, and that the bicycle could have been stopped in about the same distance; and on the part of the defendant evidence was introduced tending to show that the bicycle could have been stopped in 2 or 3 feet, and that it would take from 15 to 24 feet to stop the automobile. If the chauffeur is accurate in his testimony with respect to the distances, his machine had 25 or 26 feet to travel after he first saw the plaintiff before it would reach the line on which the plaintiff was proceeding, and the plaintiff had only 221⁄2 or 231⁄2 feet to travel to clear the automobile; and if the plaintiff was not traveling on the southerly side of Forty-Fourth street, but on the northerly side, the relative distances would be still greater in his favor of the plaintiff. It would manifestly, however, be an unfair view of the testimony of the chauffeur to seize upon these figures as indicating that if he had kept on his course the accident would have been avoided, for he further testifies that if he had kept on his course he would have run over the plaintiff. It is evident that this was his opinion at the time, and for that reason he turned to the left. With the two vehicles so near, it is reasonable to infer that his testimony that a collision would have been unavoidable if he had not turned is more likely to be accurate than his estimate of distances given in feet. The fact that the automobile, although slowing up, struck the bicycle, is evidence that the chauffeur's judgment that he would have struck the plaintiff if he had continued on his course was more accurate than his estimate of distances or of speed. Of course, the automobile may have been going much faster than the chauffeur admits, and if it shoved plaintiff from 6 to 8 feet that would indicate that it had not slowed down materially; but there was evidence from which the jury might have found that, as the vehicles approached the point of crossing, if they continued on their respective courses, and at the speed at which they were respectively approaching, a collision would have occurred. In these circumstances, it was the duty of the court to fully instruct the jury with respect to the rights and duties of the respective parties. In behalf of the defendant, an ordinance duly enacted by the legislative body of the municipality, giving "the right of way" at street intersections to vehicles traveling northerly and southerly over vehicles traveling easterly and westerly, was introduced in evidence. The court, in the main charge, neither defined negligence nor referred to the ordinance. The court subsequently, at the request of counsel for the defendant, instructed the jury as follows: "It is the duty of both these parties to exercise ordinary care. Negligence is the want of ordinary care, prudence, or caution by one performing an act, having no positive intention of injuring the person complaining thereof, and ordinary care is such care as is fairly apportioned to the risk to be incurred and 134 New York State Reporter just north of the middle of Forty-Fourth street, and the automobile came to a stop before it reached the westerly track. There is no substantial conflict in the evidence as to the course pursued by the automobile. The testimony of the other witnesses called by the defendant, however, tends to show that the plaintiff's course was about along the center line of Forty-Fourth street; that the point of collision was about between the two tracks, and at about the center, or a little north of the center, of Forty-Fourth street, and that it moved only 3 or 4 feet after the collision. The other witnesses called by the plaintiff testified, in substance, that he was riding north of the center line of Forty-Fourth street; that the collision occurred on the southbound track, or just west of the westerly rail thereof; that as the automobile reached Forty-Fourth street it swerved suddenly to the left, and at the time of the collision was faced in a westerly or northwesterly direction; that the plaintiff was knocked off the wheel to the right, and was shoved along the asphalt by the automobile from 6 to 8 feet toward the northwest corner of the street; that when the automobile came to a stop, the rear wheels were on the south-bound track, and the front wheels on the asphalt to the west. No witness, excepting the plaintiff, testified to seeing the moving van. The carriageway of East Forty-Fourth street between the curbs is 30 feet wide, and that of Madison avenue is 42 feet wide. The easterly curb line of Madison avenue is 23 feet from the building line. The easterly rail of the north-bound street railway track is 13 feet 6 inches from the easterly curb. The block between Forty-Third and Forty-Fourth streets is 200 feet long. The block bounded by Forty-Fourth street, Vanderbilt, Forty-Third street, and Madison avenue was then vacant, and inclosed by a picket fence 5 feet 9 inches in height. This fence along Madison avenue was 8 feet 2 inches west of the building line. The pickets were 3 inches wide, and spaced 234 inches apart, and were pointed at the top. The fence partly obstructed the view from FortyFourth street down Madison avenue and vice versa, unless, of course, the line of vision was above it. The evidence does not show that the chauffeur attempted to look through or over the picket fence into West Forty-Fourth street, nor does it show that the plaintiff attempted to look through or over it into Madison avenue. Testimony was given by witnesses called by the defendant tending to show that the plaintiff was riding at a speed of about 8 miles an hour, and the chauffeur testified on that subject "the boy was going as fast as I was, probably faster." With the exception of the testimony of the chauffeur, there is no specific evidence of the relative distance of the bicycle and automobile as they approached the crossing, from the point where their routes would have intersected, had they continued on their respective courses. One witness called by the defendant, who was a passenger on a south-bound street car, seated on the rear platform seat facing north, testified that the street car passed the automobile about one-third of the length of the block below FortyFourth street; that just after passing it, and when the street car was about in the middle of the block, he looked through the picket fence, and saw the plaintiff about 15 feet east of the easterly fence line of Forty-Fourth street, and, apprehending an accident, he alighted from the car, and went back and heard the plaintiff say, in answer to an inquiry from a policeman as to whether he wanted the chauffeur arrested, "No; it was not his fault." This witness does not locate the position of the automobile at the time he first saw plaintiff. The plaintiff admits that he answered the policeman's inquiry in the negative, but he denies that he stated that the chauffeur was not at fault. Evidence was adduced on the part of the plaintiff tending to show that the automobile could have been stopped in from 12 to 15 feet, and that the bicycle could have been stopped in about the same distance; and on the part of the defendant evidence was introduced tending to show that the bicycle could have been stopped in 2 or 3 feet, and that it would take from 15 to 24 feet to stop the automobile. If the chauffeur is accurate in his testimony with respect to the distances, his machine had 25 or 26 feet to travel after he first saw the plaintiff before it would reach the line on which the plaintiff was proceeding, and the plaintiff had only 221⁄2 or 231⁄2 feet to travel to clear the automobile; and if the plaintiff was not traveling on the southerly side of Forty-Fourth street, but on the northerly side, the relative distances would be still greater in his favor of the plaintiff. It would manifestly, however, be an unfair view of the testimony of the chauffeur to seize upon these figures as indicating that if he had kept on his course the accident would have been avoided, for he further testifies that if he had kept on his course he would have run over the plaintiff. It is evident that this was his opinion at the time, and for that reason he turned to the left. With the two vehicles so near, it is reasonable to infer that his testimony that a collision would have been unavoidable if he had not turned is more likely to be accurate than his estimate of distances given in feet. The fact that the automobile, although slowing up, struck the bicycle, is evidence that the chauffeur's judgment that he would have struck the plaintiff if he had continued on his course was more accurate than his estimate of distances or of speed. Of course, the automobile may have been going much faster than the chauffeur admits, and if it shoved plaintiff from 6 to 8 feet that would indicate that it had not slowed down materially; but there was evidence from which the jury might have found that, as the vehicles approached the point of crossing, if they continued on their respective courses, and at the speed at which they were respectively approaching, a collision would have occurred. In these circumstances, it was the duty of the court to fully instruct the jury with respect to the rights and duties of the respective parties. In behalf of the defendant, an ordinance duly enacted by the legislative body of the municipality, giving "the right of way" at street intersections to vehicles traveling northerly and southerly over vehicles traveling easterly and westerly, was introduced in evidence. The court, in the main charge, neither defined negligence nor referred to the ordinance. The court subsequently, at the request of counsel for the defendant, instructed the jury as follows: "It is the duty of both these parties to exercise ordinary care. Negligence is the want of ordinary care, prudence, or caution by one performing an act, having no positive intention of injuring the person complaining thereof, and ordinary care is such care as is fairly apportioned to the risk to be incurred and 134 New York State Reporter or the danger to be avoided, based upon the ordinary standard of prudence and caution. There is evidence in this case that you must consider this evidence of the ordinance that has been adduced-which gives the right of way to vehicles passing north and south over those going east and west; but you must not glean, if you conclude from the facts that there has been a violation of this ordinance, that that is conclusive evidence of negligence; but it is a fact for you to consider that the evidence does give this right of way." Counsel for the plaintiff thereafter requested the court to instruct the jury as follows: "I would like to ask your honor to charge in reference to the ordinance that the jury may consider whether the circumstances were such as to call for the application of this ordinance." The court replied: "Certainly; take all the evidence into consideration, and you are to determine whether from the evidence in this case the proof offered as the ordinance in the shape of an ordinance applies to this particular case." -To which counsel for the defendant duly excepted. Counsel for the defendant then requested the court to charge as follows: "I ask your honor to charge the jury, in view of the charge just made, that the ordinance provides that if a vehicle in the city of New York is going north or south, and if another vehicle is going east or west, and they come near to each other at a street intersection, and there is any imminence of a collision, the vehicle east and west must wait, and let the vehicle going north and south pass." Whereupon the court said: "Except as I have charged in regard to the ordinance, I refuse to charge that." I am of opinion that these exceptions were well taken. It will be observed that the court at first properly instructed the jury that they were to consider the ordinance, but that a violaion of it would not be conclusive evidence of negligence, and would be merely evidence to be considered by them upon the question of negligence. The instructions subsequently given at the request of counsel for the plaintiff were misleading. The court left it to the jury to determine as to whether the ordinance was applicable. The learned judge doubtless merely meant to leave it to the jury to determine whether the ordinance had been violated, but it is doubtful whether the jury so understood the charge as made. The automobile was going north on an avenue, and the bicycle was going west on a cross street. It is evident, therefore, that the ordinance was applicable, for its very purpose was to regulate the rights of vehicles thus crossing; but whether the ordinance was violated or not depended upon how the jury found the facts. it was left to the jury in this indefinite way to determine whether or not the ordinance applied, the object of the request of counsel for the defendant, which was declined, was to have the jury instructed by the court as to what facts would constitute a violation of the ordinance. The most casual observation of the congestion of vehicle traffic on the avenues and streets running northerly and southerly shows the necessity for such an ordinance. There are but few streets, especially uptown, where there is any congestion in vehicle traffic moving easterly and westerly. Were it not for this ordinance, not only would multi After |