#### Abigail Sperry, an Infant, by John Sperry, Her Guardian ad Litem, Respondent, *v.*Union Railway Company of New York City, Appellant.

Second Department,

December 30, 1908.

Trial — negligence — injury by surface car — charge.

A courgc that when one who attempts to cross the tracks of a surface railway has neared the track so that he has “ reasonable ground to suppose that he will be able to cross ” in front of an approaching car, it is the duty of- the car driver to give him a reasonable opportunity to do so, and that he has a right, without being charged with contributory negligence, to assume that that duty will be performed, does not base the standard of care upon the plaintiff's supposition . but rather upon what he has reasonable ground to suppose.

Such instruction does not exclude all elements of fact except that the person has approached the track and the distance of the car, so as to test his contributory negligence by these alone, but on the contrary embraces the distance of the car its speed and all the circumstances.

The correctness of the charge of the trial judge is to be determined by its substance and not by over-fine distinctions.

Requests to charge abstract propositions should not be made, but the request should be based op the concrete facts of the case.

Jenks, J., dissented on the ground that other items of the charge were erroneous.

Appeal by the defendant, the Union Railway Company of Hew York City, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 28th day of March, 1908, upon the verdict of a jury for $6,'500, and also from an order entered in said clerk’s office on the 31st day of March, 1908, denying the defendant’s motion for a new trial made upon the minutes.

*Bayard H. Ames*[*Walter Henry Wood*and *James L. Quackenbush*with him on the brief], for the appellant.

*John B. Stanchfield [Max Monfried*with him on the brief], for the respondent.

Gaynor, J.:

The instruction of the court to the jury excepted to is as follows:

“ When one attempts to cross the tracks of a street car and has *595approached the track at such a distance from an approaching car that *he*has reasonable ground to suppose that he will be able to cross the track, it is the duty of the street car driver to give him a reasonable opportunity to cross, and if for that purpose it is necessary for him to check the speed of the car or even stop the car entirely for a short space, *it is his duty to do it,*and the person crossing the track *has the right,*without being charged with contributory negligence, *to assume*that that duty will be performed.”

It is urged that this makes what the plaintiff supposed the standard of due care by her. But that is not so. The language is directly the opposite, viz.: “ When one attempts to cross the tracks of a street car and has approached the track at such a distance from an approaching car that he has *reasonable ground to suppose*”, etc. It is not that he supposes, etc., but that he has reasonable ground to suppose. It is also urged that the instruction is e: txmeous because it excludes every element of fact except that thé person has “ approached ” the track, and the distance of the car, and tests his contributory negligence by these alone. By no means; it excludes nothing. The test put by the instruction is that the pedestrian have “ reasonable ground to suppose ” he can pass in safety, and that embraces the distance of the car, its speed — in fine, everything. It will not do to finesse .with the charges of trial Judges. Controlling regard should be had to the substance, even in the rough, rather than to fine distinctions which those who seek to make them, find our language scarcely flexible enough to express. This instruction was given at the request of the plaintiff’s attorney. Bequests to charge such abstract propositions should not be made. The charge to the jury and requests to charge should, be based on the concrete facts of the case. A charge is not to be a mere legal essay.

The judgment should be affirmed.

Woodward, Bioh and Miller, JJ., concurred; Jenks, J., voted for reversal on the ground of error in the charge of the court at folios 206 and 207 of the record.

Judgment and order affirmed, with costs.