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The Court's Charge.

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under the circumstances. What is negligence depends upon the surrounding circumstances, the situation itself. You may drive in one place a car at 50 miles an hour and be perfectly safe, and you may drive a car at another place at 10 miles an hour and it may not be safe. So here the charge is made that this man drove his car in a negligent manner, that he did not observe the rules of care and caution that the ordinary man does, that he did something that he should not have done, or failed in doing something that he should have done. The plaintiff tells you nothing as to the speed at which the car was operated, as to the manner in which it was being driven, as to any act of negligence other than he has attempted, through his counsel, to have you draw the inference that as he was at a certain place, and this car was at a certain distance away, of necessity for that car to have hit him it must have gone at a very fast rate of speed. That may be so and again it may not have been so. That car may have been 100 feet away, and again it may have been 200 feet away, and again it may have been only 40 feet away. Here is a man in the street. He is standing at a certain place. There is scarcely any denial that he was standing at this place. But whether he was walking from the sidewalk across at the particular time, and that he was following the other pedestrians, I do not know. The defendant tells you that is not so, that there was a man and two women standing at the corner, or close to the

You and I know that we never stand exactly at the corner, we always walk some few feet when we are going to enter a car, unless it should be perhaps a car that you enter from the front. What the character of the car was in

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this particular case I do not know. But here were people walking across the street. How far they were from the corner is for you to say. But there is no claim that this man was directly at the corner, he was at or near the intersection of Third Avenue and 14th Street, he was at or near the northwest corner. And no man puts down, with the degree of accuracy that an engineer does, the exact location.

No effort was made on the part of the defendant to fix the exact location of the plaintiff. He says he saw a man and two women standing two or three feet from the car track. I don't know who is telling the truth and who is not telling the truth. But we are here to find out whether the plaintiff has established, by a fair preponderance of evidence, that this defendant, in the operation of his car, was negligent. If he has failed to do that, if you are undecided, then you must resolve that in his favor, and that ends this case. But if you do find that this man was negligent in the operation of his car, then the plaintiff is called upon to establish, by a fair preponderance of evidence, that he himself was free from negligence which contributed to the accident. If he was negligent, no matter to what minor or small degree, and that contributed to the accident, then he may not be held free from contributory negligence, and he cannot recover, for he proceeds solely upon the theory that the accident happened because of the negligence alone of this defendant, without any contributory negligence on his part.

Here we have a case, as we generally find it, an issue of fact. The plaintiff is here alone. He is a man advanced in years, and was at that time probably 60 years of age, a bricklayer's helper, an illiterate man. He was struck down, his

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scapula or shoulder blade and some of his ribs were fractured. He was unconscious, and was taken to a hospital. Then after he came to consciousness, and he had time to reflect, he thinks about this story. And we ask ourselves firstly, was he in a position to know what occurred? Did he know what occurred ? When he was struck and lost his senses did he forget all about this occurrence, or did he remember about it after he came to? Those things may or may not be important, but they are for you to consider, to determine whether this elderly man is attempting to wilfully tell an untruth, or whether he was in a position to tell you the truth, the whole truth, and nothing but the truth. And he tells you nothing except that he is walking across the street, and he sees this car, he figured it was 100 feet away, and the next thing he is struck. Was he careful in walking across the street under those circumstances? If he was not acting as a reasonably prudent, careful man, then he cannot be heard to complain. You must try and put yourselves in his place, having in mind who he is, and ask yourselves, under the conditions which obtained at that particular time, did he act in a reasonably prudent and careful manner? If you were walking across the street at a crosswalk, and you saw a car coming from your left, whether you would have been struck by a car without having seen it again, without knowing of its approach, is a matter for you to say. It is for you to say whether he should have seen the car while it was coming this 100 feet, and whether it was negligence for him not to see it. I do not know. Those are matters that are important in the trial of this case. There is no dispute that traffic was going north and south.

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The police officer said that traffic was going north and south, and so far as we know he is a disinterested witness. He tells you that this car was going in a southerly direction, and crossed the crosswalk at 14th Street, and that nobody that day had run counter to his instructions, counter to the direction of traffic. If that be so—and that is what the defendant says—and I do not know that the plaintiff disputes it—then this defendant had the right to proceed in a southerly direction. The defendant tells you that he saw the officer about to raise his hand with a whistle in his hand, and then, as he was coming along at the rate of eight miles an hour, the officer moved his hand for him to come on. Perhaps you have seen that happen. It is a common and a customary thing of which even the court can take judicial notice, that, for instance, just before they are going to change the direction of traffic, seeing vehicles close to the crossing, traffic officers will direct them to proceed. Whether that happened in this case or did not happen I do not know. The officer says he has no present recollection as to what happened at that time. We can understand that he would have no present recollection because if that was the ordinary and customary thing for him to do he would not keep those things in mind. The defendant tells you that at that time the officer told him to come on. If the officer did that then he had a right to

And if traffic were going north and south, and the officer was stationed there to protect traffic and protect pedestrians, then it was the duty of those who were crossing counter or opposite to the traffic to be on unusual guard, to watch their steps closely, to recognize that there was a police officer there to protect every

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body in that immediate vicinity, to regulate traf-
fic, and if he' permitted traffic to go north and
south, vehicles moving much faster than human
beings, human beings before they cross must be
on their" guard, they must be watchful of their
steps. The officer was there and we must assume
that he was performing his duty, because there
has been nothing said to the contrary. And we
must assume that he was in a place where he
could best direct traffic. You and I can under-
stand that it would be a highly dangerous thing
for him to be in “No Man's Land” between the
sets of tracks, or at that point where the four
tracks, two going in one direction and two going
in a different direction, cross. So he did not
stand right in the intersection, but he stood at
a place, we may take it, that was convenient,
where he could be observed and where he could
direct and control traffic. That is what he tes-
tified he did here. He does not tell you that the
defendant was going contrary to his instructions,
and he does not tell you that he remembers that
he was going at a fast rate of speed. The defend-
ant tells you that he was going at the rate of
15 miles an hour when he was somewhere about
15th Street. You and I can understand, if we
saw a traffic officer at an intersection where there
is a busy street like 14th Street, that ordinarily
and naturally we would slow up for fear of hit-
ting people and because of the presence of the
arm of the law." Would the defendant have
observed that precaution? I do not know. But
those are the circumstances in the case, those
are the physical facts in the case. As you look
over the testimony of these two interested wit-
nesses you must consider it in the light of the
physical facts and the surrounding circumstances

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