Fiero v. New York Central & Hudson River Railroad

24 N.Y.S. 805, 71 Hun 213, 78 N.Y. Sup. Ct. 213, 54 N.Y. St. Rep. 373

• Court: New York Supreme Court
• Decided: July 28, 1893
• Status: Published

Opinion

PRATT, J.

The charge of the court correctly stated the respective duties due to each other from the plaintiff and defendant. Probably the court might have properly refused the various requests to charge thereafter made by defendant, on the ground that the charge already made sufficiently set forth their respective duties. But the court did not take that course, but received the requests, and restated the law in defendant’s favor, so far as could be done consistently with the law. The objection to the charge most strenuously urged was to the request to charge that, if plaintiff knew there were but three cars in the train, he could not recover. We think that request was properly refused. The plaintiff might know that fact, and yet the various duties to which his attention must be addressed might so occupy his mind that he might forget it for a moment, without being guilty of negligence that would bar his recovery. The care of a prudent man was the measure of his duty. Such a man might for an instant forget a well-known fact, when fully occupied with pressing duties.

Judgment affirmed, with costs.