Ackerman v. Third Avenue Railroad — 59 N.Y. St. Rep. 315

Majority

p. 315

Minnie L. Ackerman, Resp’t, v. Third Avenue Railroad Company, App’lt.

(Supreme Court, General Term, First Department,

Filed March 16, 1894.)

Headnote

Trial—Exceptions.

After the jury have returned with their verdict, it is too late to lay the foundation for exceptions to matters which have previously occurred in open court,

Appeal from a judgment entered upon a verdict in favor of the plaintiff, and from an order denying a motion for a new trial made on the minutes.

A. W. Otis, for app’lt; Fred. P. Delafield, for resp’t.

This action was brought to recover damages for a personal injury caused, as alleged and found, by the negligence of the defendant’s employes. On June 28, 1891, the plaintiff was a-passenger, on one of the defendant’s open cars, which left the track at a curve, and collided with a post on the elevated railroad. The car struck the post with such force that one of the passengers was thrown forward to the street, and the plaintiff was thrown forward onto a seat in front of her, and to the car floor, causing in j uries from which she has not recovered.

The defendant asks for a reversal of the judgment on the following grounds : (1) Because the court refused to nonsuit the plaintiff; (2) because the court refused to charge from additional requests preferred by the defendant; (3) because the court refused the defendant’s request that the official' stenographer be directed to enter in his minutes statements which the defendant’s counsel asserted that the plaintiff’s counsel made in summing up to the jury; (4) because the court denied the motion for a new trial on the minutes. Ho exceptions were taken to the rulings admitting or excluding evidence, and no exceptions were taken to the charge as delivered. Before the court charged the jury, the defendant preferred 26 requests, all of which were charged except the eleventh, twelfth, sixteenth, and twenty-fifth, which were withdrawn. The defendant also preferred, before the charge was delivered, four additional requests. It is not asserted that any one of these were justified by the evidence, but it is alleged that they

p. 316

were by the remark of the plaintiff’s counsel in his address to the jury. Mo objections were taken to the remarks when made, nor was the attention of the court called to them until after the jury returned to the bar of the court, and announced that they had agreed on a verdict, whereupon the defendant made this request;

“ Before the verdict is taken, I make application that the stenographer may note that in the summing up the plaintiff’s counsel referred to the affliction of the parents, and their suffering, by reason of this injury; the point of my application being that some of mydast requests to charge were made in view of that, and I think I am entitled to that on record. . (Requests declined, and defendant excepts.’’)

At this stage of the trial, the court was under no obligation to-grant the request. Jf the defendant desired to object to the remarks of the plaintiff’s counsel, he should have done so when made, or at least not later than at the conclusion of his address. The court may, in its discretion, refuse to entertain exceptions taken after the jury has returned to the bar of the court with its verdict, Code Civ. Proc. § 995; and it is then too late to lay the foundation for exceptions to matters which have previously occurred in open court. The exceptions taken to the refusal of the court to charge the four additional requests was not error.

Without stating the evidence, we think it was sufficient to justify the finding of the jury that the negligence of the defendant’s servants caused the accident, and that the plaintiff in no way contributed thereto. Mor can we say that the damage was excessive. The court did not err in refusing a nonsuit,1 or in refusing to grant a new trial on the ground that (he damages were excessive.

The judgment and order should be affirmed, with costs.

All concur.