(90 Hun, 560.)

#### HEATH v. GLENS FALLS, S. H. & FT. E. ST. RY. CO.

(Supreme Court, General Term, Third Department.

December 3, 1895.)

1. Contributory Negligence—Acting in Sudden Emergency.

Where the negligence of one person places another suddenly in a position of peril, failure of such other person to exercise the best judgment cannot be considered contributory negligence.

2. Appeal—Exceptions.

An exception at the close of the charge to the court’s “refusal to charge in the language stated,” and to his “modification of the respective requests as stated,” is too general to be considered.

Appeal from circuit court, Warren county.

Action by Silas W. Heath against the Glens Falls, Sandy Hill & Ft. Edward Street-Railway Company. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Affirmed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

Edward W. Douglas, for appellant.

James H. Bain, for respondent.

PUTNAM, J.

This is an appeal from a judgment in favor of the plaintiff, entered in the clerk’s office of Warren county on the 20th day of June, 1895, on a verdict of a jury, and from an order denying a motion on the minutes of the court to set aside the verdict, and for a new trial upon exceptions, and because the verdict is contrary to the evidence. Plaintiff brought the action to recover for the loss of the services, comfort, and society of his wife, Jane Heath, and for expenses for medical services, by reason of certain injuries inflicted upon her by reason of the alleged negligence of defendant. Plaintiff and his wife were passengers on a car of defendant’s on the night of August 24, 1894, at which time a collision o ccurred between said car and another running on the same track in an oppo*23site direction. The night was dark, and there were no lights. Plaintiff’s wife, on seeing the impending collision, arose for the purpose of escaping from the car, was thrown out, and injured. For such injury she commenced an action against defendant, and recovered a judgment. On the appeal from that judgment we considered, on evidence substantially the same as that in the case under consideration, the questions as to the negligence of defendant, and the alleged contributory negligence of plaintiff’s wife, and determined that, on such evidence, those questions were properly submitted to the jury by the trial judge, and that the verdict of the jury could not be disturbed. See 86 Hun, 620, 33 N. Y. Supp. 1129. Hence it will not be necessary for us at this time to consider those portions of the brief of the learned counsel of appellant devoted to the discussion of the questions raised by him as to the alleged failure of plaintiff to show actionable negligence on the part of defendant, which caused the injury to Jane Heath, and her alleged contributory negligence. An opinion in the" case, therefore, seems unnecessary. We only deem it proper to consider briefly some of the exceptions taken by the defendant on the trial to the charge of the judge.

It is claimed that the trial judge erred in charging as follows:

> “The law is that, where a defendant is liable for damages caused by its negligence, it is not excused because the plaintiff or the person injured did an act which, upon further reflection, is seen to have been unwise or unnecessary, provided that act was caused by the peril in which the person was placed, or seemed to be placed; that is to say, if there is an impending collision between two cars, or seems to be, a person is not obliged to sit in his seat and await the result. He must act according to his own nature. If he is frightened, he will act as a frightened man will act. And you are not to hold a person who is placed by the negligence of another in imminent peril to that cool and dispassionate action which you, in looking back upon the event, shall judge to have been wiser than the action which the person frightened and placed in peril, and acting under the impulse induced by that peril, did actually perform. So that, if you find that Mrs. Heath jumped from this car, or moved towards the side of the car, you will consider whether her acts were induced by the negligent acts of the defendant. If they were induced by the negligent acts of the defendant, then the defendant is not excused because she acted unwisely. If they were induced solely by her own foolishness or stupidity,—if they were utterly unjustifiable or inexcusable under the circumstances,—then, of course, the fault is her own, and the consequence must fall upon her, or upon her husband in this action, and cannot be placed upon the defendant.”

—And also in refusing to charge as requested, to wit:

> “That any act on the part of plaintiff’s wife done under the impulse of a sudden emergency, or the excess of fear or excitement, and contributing to the injury, must be imputed to her as negligence, unless such act was such as a person of ordinary prudence would have done under the same circumstances.”

We think the portion of the charge above quoted fairly states the well-settled doctrine that one placed suddenly by another in a position of peril is not to be deemed guilty of contributory negligence although not exercising the best judgment in the emergency. Buel v. Railroad Co., 31 N. Y. 314; Roll v. Railway Co., 15 Hun, 496, 80 N. Y. 647; Voak v. Railway Co., 75 N. Y. 320; Coulter v. Express *24Co., 56 N. Y. 585; Twomley v. Railroad Co., 69 N. Y. 158. But, were it otherwise, no exception appears to have been taken by the appellant to the above-quoted portion of the charge. Nor was any valid exception taken by the defendant to the refusal of the judge to charge as requested by it in the seventh request, above quoted. The general exception of defendant at the end of the trial was to the court’s refusal to charge in the language stated, and to his modification of the respective requests as stated. Such a general exception, it is well settled, is unavailing. Haggart v. Morgan, 5 N. Y. 422; Harwood v. Keech, 4 Hun, 389-392; Schelley v. Diehl, 13 Wkly. Dig. 228; Pinedo v. Germania Smelting & Refining Works, 22 Wkly. Dig. 21. We think the court did not err in declining to charge as requested by defendant in the seventh request, or in either of the other requests made by defendant, and referred to in the brief of its counsel. The trial judge had fairly instructed the jury as to the law applicable to the case and upon the subjects referred to in such requests, and his refusal to instruct the jury in the particular language requested cannot be deemed error. Holbrook v. Railroad Co., 12 N. Y. 236. But, if otherwise, there was, as we have seen, no valid exception taken bv the defendant to either of the refusals of the judge to charge as requested. We have carefully examined and considered each exception to the rulings of the court in receiving and excluding evidence adverted to by counsel for appellant, and conclude that neither of the rulings so excepted to requires a discussion or a reversal of the judgment.

Judgment affirmed, with costs. All concur.