Cooper v. Brooklyn & Queens Transit Corp.

249 A.D. 774, 292 N.Y.S. 79, 1936 N.Y. App. Div. LEXIS 5962

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 28, 1936
• Status: Published

Opinion

The plaintiff was struck by a trolley car of the defendant as she was crossing the street. She claims that she was in the act of rescuing a friend who had fallen to the track, when the car struck them. The plaintiff had a verdict for personal injuries based on the negligence of the defendant and the plaintiff’s freedom from contributory negligence. There was no exception by defendant to the charge of the trial justice concerning the subject of rescue, nor was any request made to charge differently. Therefore, that portion of the charge became the law of the case; and it is too late for the defendant to question its application on appeal. (See Saulsbury v. Braun, 223 App. Div. 555, 558; affd., 249 N. Y. 618.) Regardless of the law of the case, there was no material error in the charge. (Wagner v. International B. Co., 232 1ST. Y. 176.) Under the proof submitted as to permanent brain injury and deformities, the verdict was not excessive. Judgment unanimously affirmed, with costs. Present — Lazansky, P. J., Hagarty, Carswell, Davis and Taylor, JJ.