The action was brought to recover damages for injury to plaintiff’s wagon, harness, and merchandise by reason of a collision between one of the defendant’s cars and plaintiff’s wagon. The plaintiff asserted that the defendant was negligent, and that such negligence was the sole cause of the collision. This the defendant denied, and alleged contributory negligence on the part of the plaintiff. The proofs were sufficient to justify the submission .of these questions to the jury, and we should not be disposed to disturb the verdict of the jury, except for that part of the charge of the learned trial court which was as follows:
“I charge that the plaintiff had the right to cross that track when he saw a reasonable opportunity to do so, even if it required the motorman of the defendant’s car to slacken its speed.”
We think this part of the charge of the court, both upon principle and authority, reversible error. It was for the jury, and not for the court, to say what the plaintiff had a right to do under the circumstances. The law required him to be reasonably prudent, and it was for the jury to say whether such prudence was exercised. It was not negligence, as a matter of law, for the motorman to fail to slacken the speed of the car; but it was for the jury to determine whether, under the circumstances, he was negligent, or not, in failing to do so. The language of Mr. Justice Hatch in McDonald v. Metropolitan Street Railway Company, 75 App. Div. 559, 560, 78 N. Y. Supp. 284, 285, writing for the entire court, is much in point. In that case the plaintiff’s intestate had been killed. The learned justice said:
“As we construe this charge, it was left for the jury to determine whether the degree of care which the deceased exercised was such as he deemed adequate; and, if so, it answered the requirements of the law. Such is not the rule. The degree of care imposed upon the deceased was such as a reasonably prudent person of the same age would have exercised under the same or similar circumstances. The charge as made, however, substitutes for such care a mental process on the part of the deceased in reaching such conclusions as to what he deemed to be adequate care. Clearly, such is not the rule. If it were, every act of the party would be sustained, as such action would necessarily involve the degree of care deemed by him to be adequate in committing the act.”
In Goetz v. Metropolitan, 54 App. Div. 369, 66 N. Y. Supp. 669, the court said:
“It is apparent that the portion of the charge just referred to, being a part of the main charge, was inconsistent with the portion first alluded to, which was made at the request of the defendant at the close of the main charge. *544Under such circumstances, we think the final instruction, in so far as it was inconsistent with what had theretofore been said, qualified the former to that extent, and was the one which was to govern the jury in their deliberations.”
The judgment and order ought to be reversed, and a new trial ordered, with costs to appellant to abide the event.