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judgment for $9,139.78 for plaintiff, on a verdict for plaintiff for $12,500, reduced by the court, and from an order denying a motion for new trial, defendant appeals. Reversed, and new trial granted.

Argued before JENKS, P. J., and MILLS, PUTNAM, BLACKMAR, and JAYCOX, JJ.

Thomas J. Brennan, of Brooklyn, for appellant.

Henry M. Dater, of Brooklyn (Jay S. Jones, of Brooklyn, and Isadore Apfel, of New York City, on the brief), for respondent.

MILLS, J. The action was brought to recover damages for personal injuries which the plaintiff, a boy 16 years of age, received from a collision of one of defendant's electric cars with an automobile which plaintiff was driving on January 17, 1918, at the crossing of the Long Island Railroad tracks, at or near Far Rockaway, alleged to have been caused by the carelessness of defendant's employé in operating the car. The answer admitted defendant's operation of the car over the Long Island Railroad tracks at the crossing of those tracks by Atlantic avenue, which is where the accident happened, but denied the other allegations of the complaint. The jury rendered a verdict for $12,500, but the trial justice set it aside, unless the plaintiff would stipulate to reduce it to $9,000, which plaintiff did, and judgment upon the reduced amount was entered.

Appellant makes here two main contentions, namely: (a) That the finding, imported by the verdict, that plaintiff was free from contributory negligence, was against the evidence, or at least the weight thereof; and (b) that the trial justice erred to the substantial prejudice of the appellant in charging the jury that the rights of the plaintiff and defendant were equal at that crossing.

Appellant also contends that its negligence was not affirmatively proven; but I do not consider the latter contention to have sufficient weight to justify discussing it independently.

As to the first contention, the material facts as tended to be proven by plaintiff's evidence are the following:

The railroad tracks there run approximately.north and south upon a private right of way; that is, one belonging to the Long Island Railroad Company, and used by both that company and the defendant, having three tracks. Atlantic avenue runs nearly east and west, or rather northwest and southeast, and crosses the tracks at grade. The crossing is equipped with gates, which, however, at the time of the accident were, and for several days had been, frozen, so as not to be operated; but, while plaintiff was familiar with the general situation, he did not know that the gates were not in working order. The crossing was also equipped with a flag or signal man, whose usual station was on the south side and west of the crossing. The accident happened at about 4 p. m. of a clear, cold day. The plaintiff, being then about 16 years of age, was driving an automobile easterly on Atlantic avenue, sitting in the front seat, on the left side, with his sister and another young woman upon the back seat.

As he approached the crossing, there were upon his right several buildings, near the tracks, which considerably obstructed his view south along the

(182 N.Y.S.) tracks. When about 20 feet from the nearest tracks, he slowed down to 7 or 8 miles an hour, and at that point he could see only about 50 feet to the south. The gates were up, having been frozen fast for several days, and the signalman was standing over by his shanty; but he waved no flag and gave no signal to the plaintiff, and at no time was out on the tracks.

As plaintiff passed the line of the buildings he looked in both directions and saw nothing approaching, but as he went upon the nearest track he looked again, south, and saw a train approaching from the south on the second, or middle, track about 75 feet away. That was a Long Island train consisting of several cars. At the sight of that train plaintiff jammed on his brakes and made a quick turn of his car to the left to avoid collision with the train, and his auto stalled, with its rear on the first rail of the first track and its front facing north. He tried to start his auto with the self-starter, but did not succeed, and then he got out of the car and went to the rear wheels and examined them, the right one first and then the left one. Before getting out he looked for approaching cars in both directions and saw nothing, and before going to the left wheel he looked again and saw nothing, but on looking a second time saw defendant's electric car, which was some 50 feet in length, approaching from the north, but being then some 400 feet away. He proceeded to examine the wheel chains, when the auto was struck by the car on the other side, and the auto in turn struck the plaintiff, and the car pushed the auto and the plaintiff along some 20 feet, causing the plaintiff's injuries.

The evidence of the defendant, upon the other hand, tended to show that the signalman was at the center of the crossing between the tracks, waving his flag, and that the auto approached at a high rate of speed, and that the motorman stopped as soon as he could after seeing and realizing the situation of the auto.

[1,2] I think that upon the above-recited evidence both questions, namely, that of negligence and that of freedom from contributory negligence, were for the jury to decide. If, as plaintiff claims, the flagman was at his shanty and gave no signal, I think it cannot be held contributory negligence as a matter of law, or even by the weight of the evidence, for plaintiff to approach so closely to the first track before discovering the train approaching upon the middle track; and that his action after his auto stalled may be considered as one taken in an emergency, and so for the jury to decide in regard to it. I think, also, that it was a fair question for the jury to determine whether or not the motorman, who knew that the gates were not working, should have seen the plaintiff and recognized his predicament in time to stop the car. Therefore I conclude that the first contention of appellant here is not well made.

As to the second contention of appellant, namely, that of error in the charge, the question presented is far more difficult. The learned justice charged the jury that the rights of the parties—i. e., the auto and defendant's car-were upon the evidence equal at that crossing, which is the well-known rule applicable to an ordinary street car at a street crossing. To that instruction defendant's counsel excepted, and requested the court to charge that defendant's car at the crossing had a superior and paramount right of way; in other words, that the well-known rule applicable to an ordinary railroad running upon its own right of way at a highway crossing applied. The court refused that request, and defendant's counsel excepted.

[3] I think the instruction thus challenged was erroneous, and that the request was correct, and should have been charged. Orafina v. New York State Railways, 148 App. Div. 417, 132 N. Y. Supp. 784; Albrecht v. Rochester S. & E. R. R. Co., 205 N. Y. 230, 98 N. E. 332; Dioguardi v. Nassau Electric R. R. Co. (2d Dept.) 164 App. Div. 896, 148 N. Y. Supp. 1112. I take it that the case is that of a fast suburban trolley service upon the right of way owned by an ordinary railroad company. It appears that defendant's cars stop at nearby ation only when here are passengers for that station; i. e., only upon signal. Moreover, this evidence was even more than that of simply a trolley service upon its own right of way; it was that of the running of trolley cars over the tracks of a regular steam railroad, viz. the Long Island Railroad Company. The mere fact that gates were there, and that their operation was permitted by public authority, indicates to my mind that the defendant's cars had the paramount right. In this case we have a curious situation, for according to the law of the learned trial justice, if the accident had happened with the train of cars belonging to the Long Island Railroad Company, that train would have had the benefit of the paramount right rule; but inasmuch as it happened a minute later, with the passing of defendant's trolley car over the same crossing, upon the same tracks and under similar conditions, the rule of mere equal rights obtained against the car. I do not subscribe to that distinction, but regard it as fanciful and unsound.

[4] The question remains: Could the defendant reasonably have been damaged by the erroneous instruction? I think it might well have been so damaged. The case was a close one upon each issue. With the true rule the jury would have been more likely to have held that the motorman was not negligent in not starting to stop when he was near enough to have avoided the collision, and to have found that plaintiff should have exercised a more vigilant outlook.

Therefore I advise that the judgment and order appealed from be reversed, and a new trial granted, with costs to abide the event.

PUTNAM and BLACKMAR, JJ., concur.

JENKS, P. J., and JAYCOX, J., concur in the result.

(182 N.Y.S.) (192 App. Div. 243)

In re MARKEWICH. (Supreme Court, Appellate Division, First Department. June 4, 1920.) Attorney and client em 58–Attorney censured for speech reflecting on decision

of federal District Judge.

An attorney at law, who was assistant district attorney, is to be censured for stating in a speech that a decision of the federal District Judge in a receivership suit, discontinuing service on certain street railway lines, was not honestly rendered, since it was in favor of the traction ring

and against the people, and that the judge should be impeached. Disciplinary proceedings by the Association of the Bar of the City of New York against Samuel Markewich, an attorney. Respondent censured.

Argued before CLARKE, P. J., and DOWLING, SMITH, PAGE, and GREENBAUM, JJ.

Einar Chrystie, of New York City, for petitioner. Olcott, Bonynge, McManus & Ernst, of New York City (William M. K. Olcott, of New York City, of counsel, and Neilson Olcott, of New York City, on the brief), for respondent.

CLARKE, P. J. The respondent was admitted to the bar in February, 1903, at a term of the Appellate Division, First Department, and was practicing in said department, and was an assistant district attorney of the county of New York at the time he committed the acts complained of.

The petition charges that on or about March 20, 1919, a bill in equity in an action against the New York City Railways Company, praying for the marshaling and conservation of the assets of the New York Railways Company for the benefit of creditors, and for the appointment of a receiver of such assets, was filed in the United States District Court for the Southern District of New York, which court had and assumed jurisdiction of the cause and thereafter appointed Job E. Hedges receiver of the assets of said Railways Company; that among the assets thereof were certain rights in and to several lines of street surface railways, commonly known as storage battery car lines, in the city of New York; that on September 12, 1919, upon the petition of the said receiver, the United States District Court for the Southern District of New York made an order directing the receiver to discontinue the operation of the said storage battery car lines until the further order of the court; that on September 18, 1919, the respondent, with knowledge of the pendency of said action and the proceedings referred to, in the course of a speech made by him at a public meeting of citizens in Public School No. 62, in a community served by said storage battery lines, after referring to the situation and conditions which would arise upon a discontinuance of said storage battery lines, said, in substance, as follows:

"The people have been discriminated against. They are being trampled upon, and the traction interests have supreme control of the court and of everybody else. The decision regarding the withdrawal of the storage battery

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

cars was in the interest of the traction trust. I am in favor of the adoption of the recall of judges. Any judge who discriminates in favor of the railroads and against the common people does not deserve to be recalled. Recalled would be entirely too mild a remedy. What ought to be done was what was done in the days of Charles II. The noose! The noose! In those days they hung judges. If that cannot be accomplished at this moment, impeachment is the next step, and Congress should impeach him, and we should ask Congress to impeach him. We should petition Congress with that purpose in mind. A judge who works for public service corporations instead of the public, should be impeached."

On October 31, 1919, the United States attorney for the Southern district of New York filed an information in the United States District Court for the Southern District of New York against the respondent, in which the facts above set forth were recited at length, and in which it was also alleged that the said remarks hereinbefore quoted tended, and were calculated and intended by the said Samuel Markewich, to influence the court in its consideration of the said cause of the American Brake Shoe & Foundry Company, plaintiff, against New York Railways Company, defendant, and the Farmers' Loan & Trust Company, complainant, against New York Railways Company, Job E. Hedges, as receiver of New York Railways Company, and the American Brake Shoe & Foundry Company, defendants, then and still pending in this court, to intimidate the court in the exercise of its lawful functions, to incite and cause public disregard of and resistance to the said order and other orders of this court in the said cause, to obstruct the enforcement thereof, and to impede the administration of justice in said cause and in other causes in said court, and generally to bring said court into public ridicule, contumely, and contempt, and to destroy public confidence in said court and in the judicial system of the United States.

The respondent was thereafter arraigned before Hon. Julius M. Mayer, one of the judges of the United States District Court for the Southern District of New York, and he then pleaded guilty to the charges made against him in the information filed. On October 8, 1919, Judge Mayer filed an opinion (261 Fed. 537), in which he directed that the respondent be severely censured for his contempt of court, and in which, among other things, he said:

"The right to discipline the members of the bar rests with courts, but it has been the established practice that the bar itself shall first investigate acts of a member of the profession, claimed to be violative of his duties and obligations. It is deemed proper, therefore, that the conduct of the defendant should be brought to the attention of the bar, and to that end the United States attorney is instructed to transmit a copy of the record

to the Association of the Bar and to the New York County Lawyers' Association."

In accordance with this instruction of the court, the United States attorney brought the matter to the attention of the Association of the Bar, as a result of which this proceeding was instituted.

The respondent having interposed an answer, and accompanying affidavits, which raised an issue of fact as to the precise language used by him in his speech, this court made an order of reference to Hon, Charles F. Brown, formerly a justice of the Supreme Court and a

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