1 dissent. The negligence of the defendant seems to be predicated chiefly upon the speed at which the car was running at the time of the accident. - The testimony of the witnesses for the plaintiff as to the speed of the car varied considerably — one testifying that its speed was eighteen miles an hour while another said it was going very fast, about nine miles an hour — the case showing the usual confusion which obtains when witnesses undertake to fix the speed of a moving vehicle in the street. Upon this testimony the question as to the speed of the car' was a fact' for -the jury, and I *7think the defendant was entitled to have the jury instructed, as requested by its counsel, that if they should find from all the evidence that the defendant’s car was being managed with ordinary care and was run at the ordinary speed of electric cars lawfully authorized to be operated in the streets of the city, and that the approach of the plaintiff upon the track was not observed by the motorrnan in consequence of the presence of the ash cart on the right-hand side of the street, then the plaintiff cannot recover.
The phrase, “run at the ordinary speed of electric cars, lawfully authorized to be operated in the streets of this city,” clearly means the ordinary speed at which it was prudent to operate such a car in this locality. It is sought in the prevailing opinion by adding-together detached portions of the charge with other requests of the defendant which were charged to show that this request was substantially complied with. But I think in this case the defendant was entitled to have presented to the jury the concrete statement of the conditions which would require them to find a verdict in its favor, and the refusal to charge this specific request was. I think, reversible error.
Judgment and order affirmed, with costs.