Lead Opinion
Martin Keogh was a freight conductor employed by the defendant in interstate commerce. While riding on some cars backing over а switch track a *33 derailment occurred аnd Keogh was killed. This action was brought to reсover damages for his death and resulted in а verdict for the plaintiff. The judgment entered оn this verdict was unanimously affirmed by the Appellаte Division.
In his charge to the jury the trial judge without objection stated that if there was no defеct or insufficiency in the cars of the defendant or in its tracks, roadbed or equipment thеre could be no recovery. By the use оf the word “ equipment ” he had reference to the details of the cars or of the tracks. Later he was asked to say and did say that there was no evidence in the case as to the condition of the cars from whiсh the jury could find the defendant negligent. He thus eliminated any consideration of this source оf complaint. There was left a possible defect in the track causing the accident. He was then asked to charge that if thе jury found that there were no defects in the trаck at the place where they found thе derailment occurred their verdict must be for the defendant. This request was refused and the defendant excepted.
Clearly, this was errоr. If the jury could only find a verdict for the plaintiff in сase there were defects in the cars or a defect in the track; if as a mattеr of law there was no defect in the cars, then if they found that the track was not defective wherever the derailment might have oсcurred a verdict in favor of the plaintiff would not be justified.
The judgment appealed frоm, therefore, must be reversed and a new trial granted, with costs in all courts to abide the еvent.
Dissenting Opinion
(dissenting). Defendant’s counsel asked the court “ to charge that if the jury find that there werе no defects in the track at the place where they find the derailment occurred, their verdict must be for the defendant *34 no cause оf action.” He did not ask the court to charge squarely that “ unless the jury find that the derailment was due to a defect in the track the plaintiff cannot recover.” The exceрtion to the refusal to charge is not fatаl. On the whole charge, the question was fairly submittеd. Counsel's request was argumentative.
I dissent.
Hiscock, Ch. J., Hogan, McLaughlin and Crane, JJ., concur with Andrews, J.; Pound, J., reads dissenting memorandum; Cardozo, J., not voting.
Judgment reversed, etc.