Defendant requested the court to charge as follows : “ I ask your Honor to charge that even if the motorman did jump, and called out ‘Jump’ and that was simply, misjudgment, and there was no negligence in the operation of the car, the plaintiff cannot recover.” For the refusal to charge as requested I think this judgment should be reversed.
Plaintiff alleged and sought to prove negligence on the part of the defendant based upon two grounds: First, running the car at excessive speed; second, improperly directing plaintiff to jump from the car. There was a sharp conflict of evidence as to the former ground of liability, and the jury would have been justified, in my opinion, in finding a verdict for the defendant upon that ground. Because of that, the request to charge became of vital importance. This request eliminated all negligence in the operation of the car and sought to have the jury instructed as to the second alleged ground of negligence. Unquestionably, if there had been negligence in the operation of the car and the motorman had been called upon to act in a sudden exigency and had mistaken through error of judgment the best course to pursue and injury had resulted to the passenger in following the advice which he gave, defendant might be liable, but that is solely on the ground that his original negligence contributed appreciably to the result. (Schneider v. Second Avenue R. R. Co., 133 N. Y. 583.) In that case the court said : “ If the party by his own negligence has placed himself in a situation of peril, and being called upon in a sudden exigency to act, mistakes his best course through an error in judgment, he is not thereby relieved. He is not in such case held for his error in judgment in failing to adopt the best means of escaping from a sudden peril, but he is liable for the original negligence which placed him in such peril, provided that negligence appreciably contributed *93to the happening of the accident.” But where there is no original negligence, the reason for the rule above stated fails and, the reason failing, the rule ceases to be operative.
Suppose that a car had been standing still and the motorman saw a runaway team approaching which he supposed would come in contact with the car, and that it was impossible for him to move the car out of the way ; and suppose that, panic-stricken, he advised the passengers to jump and in doing so one of them was injured, and that he erred in judgment in advising the passengers to jump, for, as it happened, the runaway team went by without striking the car at all. On that state of facts would the railroad company be liable ? It seems to me not, first, because the conduct of the motorman, though unwise, and his judgment, as it subsequently appeared, erroneous, was not negligent conduct; second, because the giving of such advice was not within the scope of his employment, or at least if it was, he was only bound to exercise the best judgment of which he was capable. In response to the request to charge, the court. replied: “ Refused, except as charged. I have gone fully into the duty of the motorman.” But an examination of the charge fails to disclose that he had said anything in regard to the conduct of the motorman in respect to this alleged ground of negligence. He had instructed the jury as to the effect of this emergency upon the conduct of the plaintiff as bearing upon her freedom from contributory negligence, but he had not instructed the jury, as this request required him to do, that liability of the defendant could not be predicated upon the mistaken judgment of the motorman, provided they found upon the other issue in favor of the defendant, that he was prudent and careful in his management of the car. The exception to this refusal, as it seems to me, presents fatal error, and I vote to reverse the judgment and order appealed from.
Jerks, P. J., concurred.
Judgment and order affirmed on reargument, with costs.