Whalen v. New York Central & Hudson River Railroad

Appellate Division of the Supreme Court of New York

Whalen v. New York Central & Hudson River Railroad

173 A.D. 268, 159 N.Y.S. 244, 1916 N.Y. App. Div. LEXIS 6539

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 2, 1916

StatusPublished

Cited by1 cases

This text of 173 A.D. 268 (Whalen v. New York Central & Hudson River Railroad) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Whalen v. New York Central & Hudson River Railroad, 173 A.D. 268, 159 N.Y.S. 244, 1916 N.Y. App. Div. LEXIS 6539 (N.Y. Ct. App. 1916).

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Opinion

Per Ouriam:

This court is of opinion that the judgment and order in this case should not he reversed on the appellant’s claim that the verdict rendered by the jury was in opposition to the charge of the trial court at folio 383. The specific instruction there appearing was made at the defendant’s request. There was no controversy in the proofs that the train which was being switched by the decedent at the time of the accident was composed of freight cars, none of which was to go beyond Buffalo; that is, beyond this State. If it was intended by the trial court to charge the jury that no liability could attach to the defendant on the ground that it was engaged in interstate commerce, unless some car in the train was “ going beyond Buffalo,” such an instruction would have been equivalent, as the proofs stood, to a direction of a verdict. It is evident that the trial court had no such intention, for it would have been most obvious error to have instructed the jury to that effect under the proofs in the case. The plaintiff had set out to prove that the train then being switched had a car that was filled with freight, taken on at the Fleischmann yard, which was consigned to various points outside this State. This car was referred to generally in the testimony as the “Soo car,” or the “Ferry car,” orear “No. 17,212.” That' car, because of the destination of its contents, was being used at that time in interstate commerce. The counsel for the defendant introduced into the case whatever confusion may have been caused, if any existed in the minds of the jurors, for he specifically requested the trial court, at folio 379, to charge as follows: “I ask your Honor to charge that at the time of the happening of the accident the car known as the Soo car, No. 17,212, was being transferred by this locomotive and by Whalen to this east side switch.” And on this request the court so charged. If this was a proper charge, and the defendant having requested it, is now [270]*270estopped from questioning its propriety, the defendant cannot now complain.

The judgment and order should be affirmed, with costs.

Present—Jerks, P. J., Thomas, Carr, Rich and Putnam, JJ.

Judgment and order unanimously affirmed, with costs.

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Per Ouriam:

This court is of opinion that the judgment and order in this case should not he reversed on the appellant’s claim that the verdict rendered by the jury was in opposition to the charge of the trial court at folio 383. The specific instruction there appearing was made at the defendant’s request. There was no controversy in the proofs that the train which was being switched by the decedent at the time of the accident was composed of freight cars, none of which was to go beyond Buffalo; that is, beyond this State. If it was intended by the trial court to charge the jury that no liability could attach to the defendant on the ground that it was engaged in interstate commerce, unless some car in the train was “ going beyond Buffalo,” such an instruction would have been equivalent, as the proofs stood, to a direction of a verdict. It is evident that the trial court had no such intention, for it would have been most obvious error to have instructed the jury to that effect under the proofs in the case. The plaintiff had set out to prove that the train then being switched had a car that was filled with freight, taken on at the Fleischmann yard, which was consigned to various points outside this State. This car was referred to generally in the testimony as the “Soo car,” or the “Ferry car,” orear “No. 17,212.” That' car, because of the destination of its contents, was being used at that time in interstate commerce. The counsel for the defendant introduced into the case whatever confusion may have been caused, if any existed in the minds of the jurors, for he specifically requested the trial court, at folio 379, to charge as follows: “I ask your Honor to charge that at the time of the happening of the accident the car known as the Soo car, No. 17,212, was being transferred by this locomotive and by Whalen to this east side switch.” And on this request the court so charged. If this was a proper charge, and the defendant having requested it, is now [270]*270estopped from questioning its propriety, the defendant cannot now complain.

The judgment and order should be affirmed, with costs.

Present—Jerks, P. J., Thomas, Carr, Rich and Putnam, JJ.

Judgment and order unanimously affirmed, with costs.

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173 A.D. 268, 159 N.Y.S. 244, 1916 N.Y. App. Div. LEXIS 6539, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whalen-v-new-york-central-hudson-river-railroad-nyappdiv-1916.

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