This is an action by a passenger against a carrier to recover for personal injuries sustained on the 21st day of August, 1915, shortly after noon while the car was crossing.Twenty-fifth street on the north-bound track in Sixth avenue, New York city. I am of opinion that the judgment and order should be reversed on two grounds which I will consider separately.
First. The testimony on the part of the plaintiff tends to show that as the defendant’s car, on which the plaintiff was a passenger, approached Twenty-fifth street from the south, a horse attached to a truck was going easterly on Twenty-fifth street across Sixth avenue at a walk or jog trot; that the horse, without slowing up or giving any indication that the driver intended to stop, reached the track on which, the car was moving ahead of the car and when it must have been nearly or more than a car length away; that the head of the horse was across the westerly rail before the car reached that point, and that thereupon the driver, observing that the car was coming on instead of stopping to take on passengers who were waiting to board it immediately to the south of the crossing, pulled on the reins lifting and swinging the head of the horse back and southerly away from the car as the front of the car passed, and that when the horse settled down one of the shafts of the truck entered the side of the car and injured the plaintiff, who was seated on the westerly end of the fourth seat from the front. On the part of the defendant the evidence tends to show that the car was proceeding at the ordinary rate of speed over the crossing, viz., about five miles per hour, and that the horse was approaching *869from the west on a walk and instead of stopping, as the motornian had a right to expect it would, continued on until the shaft struck the plaintiff. r ‘
It thus appears that if the testimony offered by the plaintiff was accepted as credible, a position of grave danger of collision was presented to the motorman as he approached or reached the crossing; and if the testimony offered by the defendant was accepted, there was not presented to the motorman a position from which such danger should have been apprehended. According to some of the decisions in this jurisdiction, in the one case, viz., if the motorman was confronted with a situation of grave danger of injury to passengers, it was his duty to exercise the utmost or highest degree of care and foresight of which the human mind is capable, to avoid a collision (Maverick v. Eighth Ave. R. R. Co., 36 N. Y. 378; Keegan v. Third Ave. R. R. Co., 34 App. Div. 297; affd., by a divided court, 165 N. Y. 622; Stierle v. Union R. Co., 156 id. 70, 684; Koehne v. N. Y. & Queens County R. Co., 32 App. Div. 419; affd., 165 N. Y. 603; Zimmer v. Third Ave. R. R. Co., No. 1, 36 App. Div. 269; Schneider v. Second Ave. R. R. Co., 59 Super. Ct. 536, 541; Loudoun v. Eighth Ave. R. R. Co., 162 N. Y. 380, 387; Sheppard v. Brooklyn Heights R. R. Co., 146 App. Div. 806, 809); but according to many authorities, when not confronted with grave danger, the duty of ordinary care only devolves upon the motorman in operating the car, which, of course, may require a very high degree of care. (Regensburg v. Nassau Elec. R. R. Co., 58 App. Div. 566; Conway v. Brooklyn Heights R. R. Co., 82 id. 516; Kelly v. Metropolitan Street R. Co., 89 id. 159; Merrill v. Metropolitan Street R. Co., 73 id. 401; Endres v. International R. Co., 129 id. 785; Walsh v. Yonkers R. R. Co., 114 id. 797. See, also, Ganguzza v. Anchor Line, 97 App. Div. 352; affd., 184 N. Y. 545; Palmer v. D. & H. C. Co., 120 id. 170; Beltz v. Buffalo, R. & P. R. Co., 222 id. 433; Dittmar v. International R. Co., 173 App. Div. 995; Miller v. Ocean S. S. Co., 118 N. Y. 199, 211; Kelly v. Manhattan R. Co., 112 id. 453; Murphy v. Hudson & Manhattan R. R. Co., 180 App. Div. 585, and Ayers v. Rochester R. Co., 156 N. Y. 104.) The only negligence with which the defendant was charged was the negligence of the motorman in operating the car. The court, without differentiating between *870the degree of care required of the motorman in the face of grave danger and that required ordinarily when no danger is imminent, charged the rule of liability in general terms that it was the duty of the defendant' to carry safely those whom it undertook to carry “ so far as human care and foresight will go,” and that this required the exercise of “ ‘ the utmost care and diligence of very cautious persons,’ ” and stated the question for the jury to determine as follows: “ Was the defendant negligent in exercising the highest care that was consistent with its duty as a carrier of passengers? ” and further charged that even though the driver of the truck were guilty of negligence contributing to the accident, if the defendant failed to exercise the degree of care required of it as stated in the instructions given, it must be held responsible for the accident. Under these general instructions that it was the duty of the defendant to exercise the utmost or highest degree of care and foresight of which the human mind and body were capable, which in the circumstances related only to the care to be exercised by the motorman, for aught that appears the jury may have found the facts in accordance with the evidence and theory of the defendant and yet have deemed it their duty to hold it liable. I am of the opinion, therefore, that the instructions were erroneous and that the exceptions thereto necessitate a new trial.
Second. I am also of the opinion that the rule prescribed by some of the decisions by which the carrier is held liable for the failure of the motorman to exercise the utmost or highest degree of human care and foresight when confronted with grave danger, is one most difficult of application by a jury and perplexing alike to bench and bar. (See Thoreson v. New York State Railways, 98 Misc. Rep. 37.) Ordinarily it is recognized that an individual may not be able to do the most prudent thing when confronted with danger and one who is called upon to act in an emergency for which he is not responsible is not always required to exercise even ordinary care (Getman v. D., L. & W. R. R. Co., 162 N. Y. 21; Lewis v. Long Island R. R. Co., Id. 52; Koster v. Coney Island & Brooklyn R. R. Co., 165 App. Div. 224; Van Ingen v. Jewish Hospital, 182 id. 10; Quill v. New York Central & H. R. R. R. Co., 16 Daly, 313; affd., 126 N. Y, 629); but that rule, of course, does *871not apply to an employee performing a duty of his employer to passengers. It appears from the reported cases that ordinarily when this rule is applied the jury are so instructed generally as in the case at bar. Governed by such instructions jurors may think that the motorman should wait until a crossing is clear and there is no danger of a collision; but such a rule of liability would preclude the carrier in large cities and congested centers from performing the functions for which it received a charter and franchises, viz., transporting passengers with reasonable despatch. The carrier does not insure the safe transportation of its passengers. The common-law rule of liability as applied in this jurisdiction holds the carrier liable only for injuries which it could have prevented. The extreme rule of liability to passengers for injuries which might have been prevented is readily understood even by laymen when confined to the performance of duties which from their nature afford time and opportunity for the exercise of the utmost or highest degree of care possible, such as for example the construction, inspection and maintenance of the roadbed and track and the purchase, inspection and repair of equipment, prescribing rules and regulations for the operation and management of the cars with respect to speed and otherwise. If with such duties fully performed and efficient motormen, who are able to understand their duties and the rules and to perform the one and follow the other, selected, the carrier be held liable for the exercise of that care by the motorman in any situation that may arise that would be exercised by the average individual of ordinary prudence under like circumstances in the light of his instructions, his duties, and the obligations owing by his employer to the passengers, that, I think, will satisfy the requirements of the law, and still reheve the carrier from a liability imposed by the utmost and highest degree of care rule which, when applied to a motorman in the operation of a car, imposes a liability against which it is impossible for a carrier to guard, and by which it becomes an insurer that the motorman will, in any emergency involving grave danger to passengers, do what is virtually impossible, viz., always remain calm and cool and exercise the utmost and highest degree of care for the safety of the passengers. The carrier would thereby *872become an insurer with respect to the actions of a motorman in an emergency, but that, I think, was never intended,'for it must employ motormen, and can neither perform such duties through its executive officers nor is it practical for it directly -to supervise the performance thereof. The carrier can by the exercise of the high degree of care it owes to passengers see to it that the motormen employed possess the necessary intelligence and judgment, but I know of no test by which they can insure the employment only of those who will exercise the utmost and highest degree of care when confronted with a situation involving danger to passengers.
The performance of the duty of ordinary care often requires the exercise of a very high degree of care when that is necessary to be commensurate with danger apparent or to be apprehended and guarded against; and ordinarily it should be left to the jury to determine what degree of care will constitute ordinary care in a given situation. It thus appears to me that by the change I am suggesting the administration of the law iii such cases will be simplified and rendered certain and more easily understood and that it will lessen the necessity of ordering new trials. The matter is not regulated by statute but by judicial decisions only. We have the same authority for declaring and applying this rule of ordinary care in all such cases that was possessed by the court when the two rules prescribing the liability of a carrier for the conduct of the motorman were promulgated, viz., the one of ordinary care governing when danger is not apparent or to be apprehended and that requiring the utmost and highest degree of care in the presence of grave danger. I am of opinion, therefore, that the rule of ordinary care as herein suggested should be applied throughout in determining the' care required to he exercised, not by the responsible management of the company, for the safety of passengers, but by motormen in the operation of cars. Such a rule would be readily understood by the bench and bar and could be applied without the slightest difficulty by jurors and without the danger of-misapprehension and of erroneous application incident to the application of the rule of extreme and highest degree of care in such' cases. If this point should arise in the Court of Appeals and that court should be convinced that the existing *873rule is wrong or incapable of intelligent administration, it would not hesitate to prescribe the necessary change. (See People ex rel. Schau v. McWilliams, 185 N. Y. 92, overruling People ex rel. Sims v. Collier, 175 id. 196; Fitzwater v. Warren, 206 id. 355, overruling Knisley v. Pratt, 148 id. 372.)
This court is in close touch with the trial courts and its members are free to, and at times some of them do, hold Trial Terms in other departments and the decisions of the Appellate Division on this class of questions are ordinarily final; and, therefore, since the point might not be presented to the Court of Appeals for a long time, I deem it quite proper that we should prescribe the change I have suggested, from which there will be evolved, I believe, a practical rule for the intelligent administration of the law on this subject, just as resulted from the change from the sui juris rule which was brought about by decisions of this court in the first instance and is now generally accepted and applied and has resulted in eliminating in nearly all cases of that class assignments of error that were quite common theretofore.
I am of opinion, therefore, that the judgment and order should be reversed on both grounds and a new trial granted, with costs to appellant to abide the event.
Clarke, P. J., and Merrell, J., concurred.