Crissman v. Erie R. Co. — 107 N.Y.S. 827

Majority

p. 827

CRISSMAN v. ERIE R. CO.

'(Supreme Court, Appellate Division, Second Department.

December 23, 1907.)

Headnote

1. Master and Servant—Injury to Servant—Evidence.

In an action against a railroad company for death of an engineer, evidence 7ield to sustain verdict for plaintiff.

2. Trial—Motion to Direct Verdict.

A motion to direct a verdict on specified enumerated grounds excludes all grounds not enumerated.

Appeal from Trial Term, Orange County.

Action by Caroline Crissman, executrix of Henry Crissman, against the Erie Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before WOODWARD, JENKS, RICH, MIDLER, and ■GAYNOR, JJ.

John B. Stanchfield, for appellant.

Thomas Watts, for respondent.

There is no reason to interfere with this judgment. The deceased was a locomotive engineer. His engine left the track near the Bergen tunnel in New Jersey, toppled over on and killed him. He was 59 years old and left a widow and a son 30 years old. The verdict was for $10,500. The defendant had been repairing and re

p. 828

laying a section of the track. There is evidence to show that the ties and rails were put down on loose material, and that the heavy engine caused the track to move, and to sink on one side. The defendant’s main contention was that the engine left the track just before it reached the place where the repairs had been done. The judge submitted this to the jury, and also took away from them any question of the sufficiency of the material, leaving to them only the question of whether the work had been properly done and the track made safe. The verdict is not against the weight of evidence.

The complaint alleges the New Jersey statute similar to ours which allows actions like this, but although this was 'put in issue by the answer there was no proof of it, the judge took no note of it in his charge, but instructed as though the action were under the New York statute, and there was no reference to the matter by any one during the trial. The defendant now asks for a reversal on the ground that the plaintiff did not make out a case for lack of such proof, and that therefore its motion at the close to direct a verdict was erroneously denied. But when we look at the record we find that the motion was put on specific enumerated grounds, thereby excluding all grounds not enumerated, and the one in question was not.

The judgment should be affirmed.

Judgment and order affirmed, with costs. All concur.