The motorman ordered the plaintiff to drive his horse across the track and says that the accident happened because the plaintiff stopped on the track. The motorman knew the condition of his car and his ability to abate its speed so as to permit the execution of his order, and the jury should have been charged that if the plaintiff crossed in obedience to the command he was not negligent in so doing. There is no exception to the refusal, or to the accompanying charge of the court, but as the issue of the plaintiff’s negligence depended upon the charge as requested, the absence of the exception should be disregarded. The judgment and order should be reversed 'and a new trial granted, costs to abide the event. Burr, Thomas, Rich and Stapleton, JJ., concurred; Jenks, P. J., voted to affirm. Judgment and order reversed and new trial granted, costs to abide the event.