Majority
p. 990CUNNINGHAM v. DRY DOCK, E. B. & B. R. CO. (City Court of New York, General Term. November 16, 1899.) Argued before FITZSIMONS, C. J., and McCARTHY and CON-LAN, JJ.
Headnote
Street Railroads—Negligence—Question for Jury—Instruction.A refusal to charge that, if “plaintiff stepped off car while the same was in motion,” she could not recover, is proper; since, if the car was moving slowly, the question of plaintiff’s negligence might be for the jury.
Appeal from trial term.
Action by Catherine Cunningham against the Dry Dock, East Broadway & Battery Railroad Company. There was a judgment for plaintiff, and defendant appeals.
Affirmed.
Hoadley, Lauterbach & Johnson (H. I. Scheuerman and H. Siegrist, Jr., of counsel), for appellant.
A. & C. Steckler, for respondent.
The point relied upon for a reversal of this judgment is the refusal to charge the defendant’s request that, “if the plaintiff stepped off the car while the same was in motion, then the verdict of the jury must be for the defendant.” In Kelly v. Railroad Co., 25 App. Div. at page 604, 50 N. Y. Supp. 427 , the court said:
“It must be observed that there was no question here of an attempt to alight from a slowly-moving car, which, after a signal to stop, came to a standstill. It is doubtless the rule that under such circumstances the question of contributory negligence is ordinarily a question of fact for the jury.”
See, also, Filer v. Railroad Co., 49 N. Y. 47 .
p. 991
We think that the mere refusal to charge as requested is not error. If the request referred to rapid motion, a different question would arise; and, however much the language used by the court after the denial may be criticised, the defendant did not except to such language.
The judgment and order must therefore be affirmed, with costs. All concur.
Cases cited
- Filer v. New York Central Railroad 49 N. Y. 47 p. 990