Cunningham v. Dry Dock, East Broadway & Battery Railroad

29 Misc. 772, 60 N.Y.S. 990

Opinion

Fitzsimons, Ch. J.

The point relied upon for a reversal of this judgment is the refusal to charge the defendant’s request, and “ if the plaintiff stepped off the car while the same was in motion, that the verdict of the jury must be for the defendant.”

In Kelly v. Third Avenue R. R. Co., 25 App. Div. 604, the court said: “ It must be observed that there was no question here of an attempt to alight from a slowly-moving street car, which, after a signal to stop, was about to come 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. N. Y. C. R. R. Co., 49 N. Y. 47. 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 accept such language.

The judgment and order must, therefore, be affirmed, with costs.

Conlan and McCarthy, JJ., concur.

Judgment and order affirmed, with costs.