Kuhlman v. Metropolitan Street Railway Co.

29 Misc. 773, 60 N.Y.S. 989

Opinion

Fitzsimons, Ob. J.

The only material point presented by this appeal is the refusal to charge the request, made by the defendant’s counsel, that “ If the jury believe that the defendant’s car was in motion at the time the plaintiff attempted to get off, the verdict must be for the defendant.”

The request does not distinguish between rapid and slow motion. The court charged: “ In this case it is for you to say whether the act of the plaintiff, in attempting to get off the car at the time of the accident, was negligence.” At least one of the defendant’s witnesses swears the car was moving slowly. The court’s refusal to charge was not error, under Kelly v. Third Ave. R. R. Co., 25 App. Div. 604, but seems warranted by that case. See, also, Filer v. N. Y. C. R. R. Co., 49 N. Y. 47. Judgment and order affirmed, with costs.

McCarthy, J., concurs.

Judgment and order affirmed, with costs.