Cannon v. Fargo

152 N.Y.S. 834 | N.Y. App. Div. | 1915

Per Curiam:

Plaintiff’s first and direct admission that at the time of the accident, and at the first trial, he did not know it was his duty to help with express packages, must control. He then swore that such help was not his duty, nor his custom, since (except in rare instances when called on by the station master) he had not given such help to defendant’s servants in handling express matter. His own testimony must be accepted as true, and, therefore, must be decisive of bis action. A mere volunteer, when he went to this express car, as plaintiff conceded that he was, could not afterwards face about and turn himself into an emergency helper by such outside testimony as plaintiff produced at the later trials. As the complaint should have been dismissed below, this court, on reversal, may render a final judgment of dismissal. (Peterson v. Ocean Electric R. Co., 214 N. Y. 43; Bullock v. New York Central & Hudson River R. R. Co., 213 id. 694.) The judgment and order are, therefore, reversed, and the complaint dismissed, with costs. Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ., concurred. Judgment and order reversed on reargument and complaint dismissed, with costs.