FIRST DEPARTMENT, MAY TERM, 1902. [Vol. 72. Faddis by the carpenters to use the car as a platform to do certain work which they had in charge, and that while in the performance of that work the carpenters had the exclusive control of the car and directed its movements. If it be true that the car, at the time of the accident, was under the exclusive control of the carpenters and it was moved only in accordance with their directions, then the defendant is not responsible for the death of the intestate. This being the situation at the close of the case, the defendant requested the court to charge: "If the jury find that at the time of the accident and for some time prior thereto the elevator which injured Diehl was used exclusively by the carpenters in the performance of their work, and that they were directing the movements of the car, then the defendant Robinson cannot be held responsible for the acts of Flynn, and the verdict should be for the defendant." This request was declined and an exception taken. We think the court erred in not charging the request as made. Had the facts stated in the request been found by the jury, then the defendant would not have been liable under the rule laid down in Wyllie v. Palmer (137 N. Y. 248); McInerney v. D. & H. Canal Co. (151 id. 411), and Higgins v. Western Union Telegraph Co. (156 id. 75). On the other hand, if the jury reached the conclusion that Flynn was performing a duty for which he was employed by the defendant, then the fact that he moved the car according to the directions of the carpenters did not relieve the defendant from liability by reason of Flynn's negligent act. In that case the carpenters controlled the act of Flynn simply by permission of the defendant, and to that extent they represented the defendant. question of Flynn's negligence and the intestate's freedom from negligence were for the jury. The It follows that the judgment and order appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event. VAN BRUNT, P. J., PATTERSON, O'BRIEN and LAUGHLIN, JJ., concurred. Judgment and order reversed, new trial ordered, costs to appellant to abide event. App. Div.] HENRY SCHOENER, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant. Negligence-collision at a street crossing, between a wagon and a street car, which were seventy-five feet distant when the wagon started to cross the tracks — care required where two cars overlap each other. In an action to recover damages for personal injuries, sustained by the plaintiff in consequence of a collision at a street intersection between one of the defendant's street cars and the wagon which the plaintiff was driving, evidence tending to show that at the time the plaintiff started to drive across the tracks the car was seventy-five feet away, justifies the jury in finding that the defendant was guilty of negligence and that the plaintiff was free from contributory negligence. The duty of the motorman of an electric street car, to have it under control as it approaches a street crossing, is increased where the motorman's view of the crossing is obstructed by another car traveling in the same direction. APPEAL by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of December, 1901, upon the verdict of a jury for $1,800, and also from an order entered in said clerk's office on the 20th day of December, 1901, denying the defendant's motion for a new trial made upon the minutes. Theodore H. Lord, for the appellant. Charles Caldwell, for the respondent. MCLAUGHLIN, J.: Action to recover damages for personal injuries alleged to have been sustained by reason of the defendant's negligence. The plaintiff had a verdict and from the judgment thereafter entered, and an order denying a motion for a new trial defendant has appealed. It asks that the judgment be reversed and a new trial granted upon the ground that the verdict was against the weight of evidence. This necessitates a review of the facts established upon the trial. It appeared that on the 22d of March, 1899, the plaintiff, while in the act of driving a horse attached to a delivery wagon from Great Jones street across the Bowery into East Third street, in the FIRST DEPARTMENT, May TERM, 1902. [Vol. 72. city of New York, was injured by one of the defendant's cars colliding with the wagon. At the point where the collision occurred there were four railroad tracks upon which street cars were operated two of which belonged to the defendant and two to the Third Avenue Railroad Company -the defendant's tracks being located near the center of the street and the other two nearer the sidewalks. The two tracks upon the westerly side of the street were used by the south-bound, and the two on the other side by the north-bound cars. The plaintiff testified that as he came out of Great Jones street and attempted to pass over the Bowery he looked up and down that street for approaching cars; that he then saw two cars coming south, one on the tracks of the defendant, and one on the tracks of the Third Avenue Company, and that as he reached the tracks of the defendant he saw the car which subsequently struck the hind wheel of his wagon, and it was then about seventy-five feet away. As to the distance of the car from the point of collision at the time the plaintiff commenced to drive across the defendant's tracks the plaintiff was corroborated by the witnesses Elisberg and Engel, both of whom testified that the car was then more than seventy-five feet away. There was also evidence to the effect that the car approached the crossing at a high rate of speed and that the motorman did not then have it under control. The testimony of several witnesses on the part of the defendant tended to establish that the defendant's car overlapped that of the Third avenue, and by reason thereof the view of the motorman was obstructed and that he did not see the plaintiff in time to check the speed of the car and prevent the collision. The motorman testified that the first he saw of the plaintiff's wagon was when it was not more than fifteen to twenty feet from the car and that it was impossible for him to stop the car within that distance and in this he was sustained by several witnesses. But the motorman further testified that he could not tell the speed at which the car was being run, but that he could stop it within fifteen or twenty feet if the reverse operated, and within twenty to twenty-five feet if it did not. It also appeared that the length of the Third avenue car was thirty-five feet and that it stopped about ten feet north of the crossing. Therefore, if the defendant's motorman had been as alert as the App. Div.] FIRST DEPARTMENT, MAY TERM, 1902. motorman on the Third avenue car, the collision could have been prevented, because the motorman must have had upwards of thirty feet within which to stop the car after he first saw the plaintiff. The accident, it will be remembered, occurred at a street crossing where the plaintiff had as much right to the use of the street as the defendant did. It certainly was not an act of negligence on his part to attempt to cross the street if the defendant's car was then seventyfeet away, and the jury would have a right to find, if the car were this distance away, that the defendant was negligent if it did not check the speed of its car and prevent a collision. A duty rested upon the motorman to have the car under control as it approached the crossing, and this duty was increased if it be true, as contended by the defendant, that his view of the crossing was obstructed by the Third avenue car, for which reason he should have exercised more care. He could not approach the crossing at a high rate of speed, and then, when a collision occurred, excuse himself because there was another car in front, which prevented his seeing the crossing. I am of the opinion, therefore, upon the testimony of the plaintiff's witnesses, as well as upon the testimony of some of the defendant's witnesses, that a question of fact was presented to the jury and that the learned trial justice did not err in submitting the case to them. No other errors are alleged and it follows that the judgment must be affirmed, with costs. VAN BRUNT, P. J., O'BRIEN, INGRAHAM and HATCH, JJ., concurred. Judgment and order affirmed, with costs. FIRST DEPARTMENT, MAY TERM, 1902. [Vol. 72. AMELIA LUDEMAN, as Administratrix, etc., of WILLIAM H. LUDEMAN, Deceased, Respondent, v. THIRD AVENUE RAILROAD COMPANY, Appellant. Attorney and client· — an attorney for a defendant sued for negligence may stipulate that the plaintiff's deposition taken before trial may be read, in case of his death, in an action by his personal representatives — that two verdicts have been rendered for the plaintiff, considered on the question of reversal as against evidence. An attorney has implied authority, by virtue of his retainer, to do whatever in his judgment may be necessary to advance his client's interest. To that end the attorney for the defendant, in an action to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendant, has authority to agree that the deposition of the plaintiff may be taken before the trial and that, if he dies before such trial, the deposition may be read upon the trial of an action brought by his personal representatives, against the same defendant, to recover damages resulting from the decedent's death. In determining whether a judgment, entered upon the verdict of a jury, should be reversed as against the weight of evidence, the fact that on a former trial another jury reached the same conclusion should be considered. APPEAL by the defendant, the Third Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk cf the county of New York on the 6th day of January, 1902, upon the verdict of a jury for $12,000, and also from an order entered in said clerk's office on the 3d day of January, 1902, denying the defendant's motion for a new trial made upon the minutes. Charles F. Brown, for the appellant. Charles L. Guy, for the respondent. MCLAUGHLIN, J.: Action to recover damages sustained by the widow and next of kin of William H. Ludeman, deceased, resulting from his death, alleged to have been caused by the defendant's negligence. There have been two trials. At the close of the first trial a verdict was rendered in favor of the plaintiff, which was set aside and a new trial granted by the learned justice presiding, upon the ground that it was against the weight of evidence, and on appeal to this court the order was affirmed. (Ludeman v. Third Avenue R. R. Co., 30 App. Div. 520.) On the second trial a verdict was again rendered in favor of the plaintiff and from the judgment |