97 N.Y.S. 483 | N.Y. App. Div. | 1906
' On the morning of the 23d day of June, 1900, Mr. Truley, the plaintiff in the second entitled action, was in the employ of Mr. Murphy, the plaintiff in the first entitled action, in charge of a dump cart and team owned by liis employer, and while driving westerly along Rinety-eighth street and ^crossing the- north-hound track of the defendant in Third a-venue a north-bound car collided with the. vehicle personally-injuring-Ml. Truley and- seriously' ■injuring the' horses and damaging the wagon.
At- the-nlose of the charge, in which the jury were fully and properly instructed upon the law, the attorney for the plaintiff evidently desirous of obtaining from the-court a binding instruction to the jury that certain specific facts and acts if found would,, as matter of law, free his client from the charge of contributory negligence, requested the court to charge the jury “ that in the event that -they find that the plaintiff Truley drove on the track and that his horses were on the track, going on the track when this car was about, as he testified, from 75 to 100 feet away, that there was .no negligence
x It follows, therefore, that the judgment in each case' should be reversed and a new trial granted, with costs to appellant to /¡ibids > the event.
O’Brien, P. . J., Ingraham, McLaughlin and Houghton, J.T., concurred.
Judgment in each case reversed, new trial ordered, costs 'to appellant to abide event. , ■ '