#### Samuel D. Hoyt, Resp’t, *v.*The New York, Lake Erie & Western Railroad Company, App’lt.1

*(Court of Appeals, Second Division,*

*Filed January 31, 1890.)*

.Negligence—Contributory—Charge .

On the trial of an action for damages claimed to have been caused hy the hind wheel of a wagon having dropped into a hole at the side of the planking at a crossing outside the rails of defendant’s road, it was shown that the wagon was driven on to the planking on a curve and upset. The *49judge charged the jury that “mere error of judgment as to what particular part of the crossing he would drive this loaded wagon over could not toe called negligence.’" *Held,*error.

{Bradley, J., dissents.)

Appeal from a judgment of the general term of the second, department, affirming a judgment upon the verdict of a jury in favor of the plaintiff for $5,000 damages, and an order denying a motion for a new trial upon the minutes.

The complaint alleged, among other things, that on the 17th day of October, 1888, while the plaintiff was traveling in a careful and prudent manner with his team, wagon and a load of straw thereon along one of the streets in the village of Middletown and upon the crossing of the defendant’s-railroad over said street, the hind wheel of plaintiff's wagon was forced into a hole in said street at the side of the planking of said crossing outside the rails of the defendant’s road, which hole was caused by defendant’s neglect, and that in consequence of the hind wheel of the wagon going into said hole the load of straw carrying plaintiff with it was tipped off said wagon and the plaintiff was injured.

With other allegations the defendant’s answer denied the defendant’s negligence, and alleged the plaintiff’s negligence caused or contributed to plaintiff’s injury.

*W. F.*O'Neil, for resp’t; *Lewis E.*Carr, for app’lt.

1

 Reversing 6 N. Y. State Rep., 7.

Potter, J.

The trial of the action under the pleadings involved the negligence of both the plaintiff and defendant, and the evidence upon the trial had mainly relation to those issues. The only errors assigned by the appellant that I deem it necessary to examine in disposing of this appeal relate to the rejection of some evidence offered by the defendant upon the subject of plaintiff’s contributory negligence and the refusal of the judge to charge one of the requests of defendant’s counsel. Evidence was given upon the trial of the case tending to show the height and width of the load of straw and the extent of the projection of the shelving beyond the sides and the direct supports of the body of the wagon. Evidence was also introduced showing that the wagon was driven upon a curve from the street upon platform scales at the side of the street for the purpose of weighing the load, and after the load was weighed the wagon was driven by a reverse curve upon the crossing, and that while the wheels of the wagon were following this reverse curve, or in other words,while the wagon was being cramped, the horses and forward wheels of the wagon were upon the crossing, and at this stage of the. proceeding the hind wheel of the wagon was driven into the hole or depression at the side of the plank across the road-way and the load of straw slid off.

It is well known to every practical wagoner-that in cramping a farm.wagon, that the plane of the base on which the bolster rests is much shortened and that if the wagon is cramped to any considerable extent one of the forward wheels strikes and raises the *50side of the body of the wagon on the one side while the support of the opposite side is shortened, and that the more the load overhangs the sides of the wagon the more the level of the wagon is disturbed. To avoid this effect there is usually a support called a hound extending back some little distance to prevent the end of the bolster from dropping too low and upon which the bolster may slide back to its larger base as the occasion for cramping ceases and the forward wheels of the wagon get into line with the hind wheels. But sometimes the bolster, through defect in itself or of the hound, drops over the end of the hound and prevents the return of the bolster to its base and the restoration of the body of the wagon to a level.

The defendant sought to show that the inclination of the wagon which caused the load to slide off was occasioned by reason of the dropping of the bolster over the end of the hound. If the jury should find that a defect in the bolster and hound caused the inclination, or contributed to increase the" inclination caused by the settling of the hind wheel into the hole, such finding would constitute a defense to the action. With a view to the proof of that fact, the defendant proved that on the next day the samo driver with the same team, wagon and shelving was engaged in drawing corn stalks in a corn field. The defendant then offered to show what occurred the next day when there was a load of corn stalks on the wagon, and also that they had trouble which came near upsetting their load. This was objected to as *immaterial,*and the court excluded the proof, at the same time remarking: “You may show anything about *its being out of order,*but. that they met with an accident the next day is not competent.’* The defendant then asked: “ Did you have any difficulty with regard to the wagon when there was a load on it the next day ? ’* Upon objection this question was excluded, and defendant’s counsel excepted. The defendant’s counsel then asked this question: “On the next day, when a load was on, did the bolster drop down behind the hound, so that the wagon came near upsetting in the effort.” This was objected to and excluded, and the defendant excepted.

It will be observed by comparing this question with the preceding ones that the point of the question is changed. The point of the last question is whether the bolster caught behind the hound, and that the wagon was thereby nearly upset. The court had just held that the defendant might show that the wagon was out of order. I think, with the court below, that the defendant should have been allowed to show that the bolster caught behind the hound. That was doubtless the view of the court below, but in the haste and confusion produced in the mind of the court-by rapid questions and offers, and the interposition of undiscriminating objections, the point of the last question was lost-sight of. The character of the former questions had been changed, and the meaning of the last question was whether the bolster did not drop behind the hound, and whether, while it was in that condition (not in a corn field nor with a load of corn stalks upon it), but simply in turning with a load upon the wagon, and the bol*51ster caught by the hound, the wagon was not as a fact nearly overturned.

It seems to me that the learned trial judge committed an error in excluding the answer to the question.

I think moreover that that question should have been allowed for this additional reason, that it was designed to or would serve the purpose of eliciting evidence to meet the evidence of the witness Cantine, introduced by plaintiff, to the effect that some two years afterward in some experiments with the wagon at the place of the accident, but without any load upon it, the wagon was cramped and straightened out without any difficulty. But I prefer to put my opinion upon the broader ground, that the defendant was entitled to show the defect of the wagon in respect to the bolster and hound, and that such defect tended in theory, and operated in practice, to overturn the wagon and thus put this case in line with that numerous class of cases that where a defect is shown to exist, that fact may be legitimately strengthened by proof of other and similar effects both before and after the effects were produced which form the subject of the trial. *Quinlan*v. *The City of*Utica, 11 Hun, 217, affirmed in 74 N. Y., 603; *Hill*v. *Portland R. R. Co.,*55 Me., 438; *Dougan*v. *Champlain Transportation Co.,*56 N. Y., *7; Darling*v. *Westmoreland,*52 N. Y., 401; 13 Am., 55; *Crocheron*v. *North Shore, etc., Co.,*56 N. Y., 656; *Kent*v. *Lincoln,*32 Vt., 591; *Smid*v *Mayor, etc.,*49 Supr. Ct., 126.

I am also of the opinion that the learned judge committed an error in his charge in reference to the subject of contributory negligence. That subject was presented to the jury principally in view of the manner of approaching and entering upon the crossing, and whether the wagon wheels were in line or were cramped and out of line, and whether the proper and safe part of the crossing was selected by the driver upon this occasion. The learned judge charged the jury in that regard “ that they were not to understand that contributory negligence means any error of judgment.”

Again the learned judge charged the jury “ but mere error, of judgment as to what particular part of the crossing he would drive. this loaded wagon over could not be called negligence.” This I am disposed to think was erroneous. The judgment that is required to be exercised is the judgment of a man of ordinary and common prudence. The judgment of an imbecile or idiot will not suffice unless such judgment accords with the standard above indicated.

The defendant excepted “ to so much of the charge as says that contributory negligence is not made out by showing error of judgment as to the part of the crossing he would drive over.”

The error of judgment referred to in the exception is not necessarily the error of judgment of a man of ordinary prudence and the judge did not follow this expression “of an error of judgment ” with the explanation which followed the former expression or with any qualification whatever.

For these errors I think the judgment should be reversed and a new trial granted, with costs to abide the event

*52All concur on the second ground, except Bradley, J. dissenting and Brown, J"., not sitting.