Lead Opinion
On the 25th of August, 1895, the plaintiff, a child? aged nine years, while crossing on Forty-Third street from the north
The defendant requested the judge to charge that, if the jury be
According to the evidence of the defendant’s witness, they stopped near the corner of Forty-Third street and Third avenue for the purpose of unloading some of this ice. Up to that time they had been proceeding in the business in which they were engaged. While they stood there, unloading the ice, if they did do so, they were undoubtedly not engaged in the master’s business, and were acting in their own behalf, and at that time it is -quite clear that the master was not liable for the unloading in which they were engaged. The jury were so instructed by the court. They were told that, if the accident happened while these men were unloading the ice, the defendant was not responsible. It is true that the reason given by the court was not the one insisted upon by the defendant, but that was a matter of no importance. The material fact was that, if the jury found that the accident was caused by unloading the ice, that was the end of the liability, so far as the defendant was concerned; and, if the defendant had the benefit of that instruction, it had no right to complain with regard to the reasons which were given for it. But the request for a charge on the part of the defendant went further than that. It was that, if the accident happened at that place, the .defendant was not responsible, without regard to the question whether Sweeney was unloading ice or not. This request, we think, went too far. There could have been but two ways, under the testimony, in which this accident occurred. One was by the slipping of the ice from the tongs while it was unloading, and the other was because it slipped off of the wagon after Sweeney had started on his way to the Grand Central Station. The defendant was sufficiently protected by the charge if the jury found that the accident was caused in the way first mentioned. We think that the defendant was not entitled to be relieved from liability if the accident happened after Sweeney had taken his place upon the wagon, and resumed his course towards the Grand Central Station, and the .accident was caused by .the slipping of the ice off from the wagon. At that time, Sweeney, -whatever may have been his object in deviating from the direct route, was again proceeding to deliver the ice. He had accomplished whatever purpose he intended to accomplish by the deviation, and had resumed the execution of the work which the defendant had intrusted him to do. The essential conditions at that time were the same as they would have been had
It appeared in the case that when the action was first brought
The judgment and order should be affirmed, with costs.
BARRETT, O’BRIEN, and INGRAHAM, JJ., concur.
Dissenting Opinion
I cannot concur in the conclusion arrived at by the majority of the court in the case at bar. Before the court charged the jury, the defendant’s counsel requested the court to charge:
“That, if the jury believed from the evidence that the driver, Sweeney, and his helper, McQuade, were unloading ice from the truck opposite the Italian Yitello’s basement at the time of the accident, outside of any duty on their part to the defendant, they must find for the defendant.”
This request was refused. It is conceded by the prevailing opinion that the defendant was entitled to have this question submitted to the jury. But it is urged that the refusal of the court to charge as contained in the record was cured by the charge which was subsequently delivered, and that the jury were told that, if the accident
“It is true that the reason given by the court was not the one insisted upon by the defendant, but that was a matter of no importance. The material fact was that, if the jury found that the accident was caused by unloading the ice, that was the end of the liability, so far as the defendant was concerned; and, if the defendant had the benefit of that instruction, it had no right to complain with regard to the reasons which were given for it.”
It seems to me that there are two answers to this proposition: First, that the jury might have found the reason given not true in fact, the court basing its instruction to the jury upon the assumed fact that, if the drivers were unloading the ice at the time of the accident, the plaintiff could not recover, because there was no evidence of any negligent handling at that time. The evidence in respect to the unloading of the ice showed that, if the accident happened in connection with such unloading, it was caused by. the slipping of the ice from the tongs of one of the workmen, and this, unexplained, showed negligence. The instruction to the jury, therefore, was upon an assumption as to the condition of the evidence which did not exist; and the jury may very well have come to the conclusion that, if there was evidence of such negligence, the direction did not apply. The reason given is only stated parenthetically, and qualified the charge. The defendant was entitled to an absolute, unconditional instruction to the jury upon this point, and not one qualified by a reason which was not justified by the evidence. And, furthermore, the learned court charged:
“Upon that testimony the jury is to say how the wagon was loaded at the time it went out from the defendant’s yard on the morning in question. That seems to be the principal question in the case; the plaintiff’s claim being that it went out loaded in a defective way, and without any protection to prevent the top cakes from slipping; the defendant’s evidence being that it went out loaded in the proper way so as to prevent those cakes from slipping. That question is at the outset of the case, and upon your finding upon that depends your finding the case.”
The jury were, therefore, instructed by the court that their verdict did not depend upon the question of unloading the ice, but depended entirely upon the question as to whether the load was properly put upon the wagon. It is true that it is in a subsequent part of the charge that the instruction in regard to unloading is given. But the charge upon the question as to whether the loading was defective or not was in no way qualified, and the jury, under it, were justified in finding the verdict for the plaintiff if they found that the wagon had been defectively loaded, even though the accident had occurred while they were unloading the ice in front of the Italian’s store. It seems to me that by the failure in any way to qualify the previous parts of the charge, and by the giving of an erroneous reason for the subsequent instruction in regard to unloading, it is impossible to say that the jury were not entirely misled, or to determine which instruction the jury followed. It has been too often held to need the citation of authorities that an instruction given in a subsequent, part of the charge does not cure an error committed in a previous instruction..
“So that the question comes down to a conflict between these witnesses as to how that wagon went out loaded on that morning. If you believe that the wagon went out as testified to by Mr. McQuade and the driver, Sweeney, as they say they loaded it, with those top cakes of ice not protected by the wedge cakes at the back, so that in starting up the wagon the ice was likely to slip off, then the plaintiff has made out the allegations of the complaint that the ice slipped off and fell from the wagon.”
The jury, therefore, went out with the instruction that the sole question upon which they were to pass was as to the loading of the wagon. These instructions were duly excepted to by the defendant. I fail to see that these exceptions can be avoided. The question was clearly presented to the court; the defendant’s request was denied, and to its denial an exception was taken; and the instruction was given, not once, but twice, that the sole question was as to the loading of the wagon; and.this was the last instruction given to the jury.
The judgment should be reversed.