Walker v. Second Avenue Railroad

The Superior Court of New York City

Walker v. Second Avenue Railroad

57 Jones & S. 141, 24 N.Y. St. Rep. 961, 57 N.Y. Sup. Ct. 141

CourtThe Superior Court of New York City

DecidedJune 28, 1889

StatusPublished

This text of 57 Jones & S. 141 (Walker v. Second Avenue Railroad) is published on Counsel Stack Legal Research, covering The Superior Court of New York City primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Walker v. Second Avenue Railroad, 57 Jones & S. 141, 24 N.Y. St. Rep. 961, 57 N.Y. Sup. Ct. 141 (N.Y. Super. Ct. 1889).

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Opinions

By the Court.—Sedgwick, Ch. J.

The action was for damages from alleged negligence of defendant’s servants.

The case was tried upon a theory adopted by both sides, and, in view of that, the denial of the motion [142]*142to dismiss the complaint, or for a direction to the jury in favor of defendant, was not erroneous.

There were certain exceptions taken to the refusal of the court to charge certain requests made by defendant. I wish to notice that it does' not appear directly by the case that the court made the refusals. It only appears by construction or argumentatively. Assuming that there were refusals, the case shows that the exceptions to them were made after the jury had retired to deliberate. The appeal assumes that the requests were made before the jury had retired. If they had not been, a refusal would have .been justified on that ground. But exceptions to. refusals, not taken at the time of the ruling of the court, have no validity as exceptions, and cannot be heard upon the appeal. It is an exception to the charge as made, which can be taken at any time before the jury have rendered their verdict. Section 995, Code Civil Procedure.

There was one exception to the charge. The court had charged that the jury might consider the effect of certain things, in assessing damages for the loss of services, and then proceeded “ all these elements are to be considered and the pain that she has undergone, so far as it prevented her from being of this use to the parent, all these things are to be considered in making up your opinion as to the amount of damages.”

The defendant’s counsel excepted to the charge “that the pain that she has suffered may be considered with other elements of the case.” The court had riot charged that, but charged that the jury might consider the pain, so far as it prevented the child being of use to the plaintiff. It is then argued that there was no evidence that pain had diminished the quantity or affected the quality of the services. If this be deemed the objectionable part of the charge, then the charge being right in principle, [143]*143the attention of the court should have been directed to the particular thing which was the ground of the objection. It does not appear to me that the testimony would not have permitted the jury to find that, in consequence of pain, the plaintiff could not do services that she had been in the habit of performing, so as to entitle the plaintiff to nominal damages at least on this account. But the exception did not refer to this matter of the amount that might be found by the jury.

The judgment and order should be affirmed with costs.

Freedman, J., concurred.

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By the Court.—Sedgwick, Ch. J.

The action was for damages from alleged negligence of defendant’s servants.

The case was tried upon a theory adopted by both sides, and, in view of that, the denial of the motion [142]*142to dismiss the complaint, or for a direction to the jury in favor of defendant, was not erroneous.

There were certain exceptions taken to the refusal of the court to charge certain requests made by defendant. I wish to notice that it does' not appear directly by the case that the court made the refusals. It only appears by construction or argumentatively. Assuming that there were refusals, the case shows that the exceptions to them were made after the jury had retired to deliberate. The appeal assumes that the requests were made before the jury had retired. If they had not been, a refusal would have .been justified on that ground. But exceptions to. refusals, not taken at the time of the ruling of the court, have no validity as exceptions, and cannot be heard upon the appeal. It is an exception to the charge as made, which can be taken at any time before the jury have rendered their verdict. Section 995, Code Civil Procedure.

There was one exception to the charge. The court had charged that the jury might consider the effect of certain things, in assessing damages for the loss of services, and then proceeded “ all these elements are to be considered and the pain that she has undergone, so far as it prevented her from being of this use to the parent, all these things are to be considered in making up your opinion as to the amount of damages.”

The defendant’s counsel excepted to the charge “that the pain that she has suffered may be considered with other elements of the case.” The court had riot charged that, but charged that the jury might consider the pain, so far as it prevented the child being of use to the plaintiff. It is then argued that there was no evidence that pain had diminished the quantity or affected the quality of the services. If this be deemed the objectionable part of the charge, then the charge being right in principle, [143]*143the attention of the court should have been directed to the particular thing which was the ground of the objection. It does not appear to me that the testimony would not have permitted the jury to find that, in consequence of pain, the plaintiff could not do services that she had been in the habit of performing, so as to entitle the plaintiff to nominal damages at least on this account. But the exception did not refer to this matter of the amount that might be found by the jury.

The judgment and order should be affirmed with costs.

Freedman, J., concurred.

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Bluebook (online)

57 Jones & S. 141, 24 N.Y. St. Rep. 961, 57 N.Y. Sup. Ct. 141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-v-second-avenue-railroad-nysuperctnyc-1889.