Hyperlawhypertext legal database Piper v. New York Cent. & H. R. Railroad 34 N.Y.S. 1072

← Cases

Piper v. New York Cent. & H. R. Railroad

34 N.Y.S. 1072 Court N.Y. Gen. Term Decision date 1895-07-26 English

Delivered by BROWN, P. J.

Contents

Majority

p. 1072
PIPER v. NEW YORK CENT. & H. R. R. CO.
(Supreme Court, General Term, Second Department.
July 26, 1895.)

Headnote

1. Carriers—Injury to Passenger—Contributory Negligence.
A passenger on a Sleeping car. while groping in the dark for the water* closet, opened the door in the vestibule between two cars, and fell out. Belli, that he was not, as.a matter of law, negligent in. not calling the porter and waiting for a light.
2. Appeal—Exceptions.
An exception “to each of the charges made * * * at the request of plain till, and to each qualification of those requests [made by defendant], and to each refusal to charge either of the propositions requested by defendant,” is insufficient.
Appeal from circuit court, Kings county.
Action by Elwin S. Piper against the New York Central & Hudson River Railroad Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
For former reports, see 27 N. Y. Supp. 593 , and 28 N. Y. Supp. 1114 .
Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.
Frederick A. Ward, for appellant.
Joseph A. Burr, for respondent.

This case was before the general term of this department at the December term in 1893 upon an appeal by the plaintiff from a judgment in favor of the defendant entered upon a dismissal of the complaint. The court then decided that the question as to the negligence of both parties was for the jury. We do not think that the case has been materially changed upon the retrial, and we adhere to the decision then made. The learned judge who wrote the opinion upon the former appeal appears to have understood that the plaintiff fell from the rear door of the rear car of the train. The fact that he fell from the vestibule between two cars does not make inapplicable the rule of law then applied, or anything said in the opinion; and, after a careful review of the testimony, we think the case in all its aspects was for the jury.

At the close of the charge the defendant presented to the court 28 requests, some of which were charged and some refused. The defendant then excepted “to each of the charges made by the court at the request of the plaintiff, and to each qualification of those requests, and to each refusal to charge either of the propositions requested by the defendant to be charged.” These exceptions are wholly insufficient to present any question for review. Smedis v. Railroad Co., 88 N. Y. 22 ; Newall v. Bartlett, 114 N. Y. 405 , 21 N. E. 990 ; Huerzeler v. Railroad Co., 139 N. Y. 490 , 34 N. E. 1101 . Other requests were made and exceptions taken to the rulings of the court, but they present no other question than that arising upon the motion to dismiss the complaint, and need not be considered. None of the exceptions to the rulings upon evidence are well taken, and the judgment must be affirmed, with costs. All concur.

Cases cited