Muriano v. Interurban Street Railway Co. — 92 N.Y.S. 262

Majority

p. 262

MURIANO v. INTERURBAN ST. RY. CO.

(Supreme Court, Appellate Term.

February 23, 1905.)

Headnote

Street Railroads—Truckmen—Injuries—Instructions.

In an action for injuries to a truckman, an instruction that, If the truck which plaintiff was driving was at a standstill, the motorman had no right to put on full speed and strike the truck, was erroneous, as withdrawing from the jury any question as to the motorman’s negligence in a certain contingency.

Appeal from City Court of New York, Trial Term.

p. 263

Action by James Muriano, an infant, against the Interurban Street Railway Company. From a City Court judgment in favor of plaintiff and from an order denying defendant’s motion for a new trial, it appeals. Reversed.

Argued before SCOTT, GIEGERICH, and McCALL, JJ.

Bayard H. Ames and F. Angelo Gaynor, for appellant.

Louis Steckler, for respondent.

The justice erred in charging the jury that if the truck which plaintiff was driving was at a standstill the motorman had no right to put on full speed and strike the truck. The effect of this charge was to withdraw from the jury any question as to the negligence of the motorman in a certain contingency. Whether or not the conductor was guilty of negligence was entirely for the jury, and should have been left to them.

Judgment reversed, and new trial granted, with costs to appellant to abide the event.