Lee v. Third Avenue Railroad

35 Misc. 841, 72 N.Y.S. 1114

Opinion

Per Curiam.

We have examined with care the record herein, and are of the opinion that, on the testimony adduced, the case was properly one.for a jury. With their findings we are not disposed to interfere, as there is no such preponderance of evidence to justify it.

The charge of the trial justice was fair and impartial, and correctly stated, as a whole, the principles of law governing the case in question. While the instruction that the motorman of the car was bound to avoid the accident was error, the same was subsequently cured by the statement that he was bound to exercise that care and caution that a prudent man would exercise in order to avoid a collision. This was certainly inconsistent with the previous charge upon the same point, and was obviously made to correct the error stated. The rule is well settled that, where a judge, in charging a jury, lays down erroneous propositions, but subsequently corrects the misdirection and gives the true rule, no error is presented for a review. We think the withdrawal mentioned met the requirements of Chapman v. Erie Railway Co., 55 N. Y. 579; Falke v. Third Ave. R. R. Co., 38 App. Div. , and that the jury were not influenced hy the erroneous instruction first stated.

The judgment, therefore, should be affirmed, with costs.

Present: Fitzsimons, Ch. J., and Delehanty, J.

Judgment affirmed, with costs.