| N.Y. App. Div. | Dec 15, 1911
Judgment and order reversed and new trial granted, with costs to appellant to abide event. Held, that the law of the case, as charged by the court, being in effect that the only duty resting upon the defendant was not to wantonly, wickedly or recklessly injure plaintiff’s intestate, the proof did not warrant the jury’s finding that the defendant violated that duty. All concurred, except Kruse, J., who dissented upon the ground that even under the rule stated (which I think is too narrow) the case was properly submitted to the jury. The judge charged the rule of liability as requested by defendant’s counsel and he at the same time conceded that the inference might be drawn from plaintiff’s testimony that the engineer saw the deceased.