| N.Y. App. Div. | Oct 11, 1932
The main charge may be subject to hyper-criticism with respect to its accuracy and completeness concerning the duty resting upon defendant if confronted with an emergency not of his own creating. However, the inaccuracy is not necessarily of serious importance and it was not called sharply to the attention of the learned trial court by plaintiff’s counsel, either through exception or request. The omission of the court to charge upon request of plaintiff’s counsel as to an emergency created by defendant was negligible under the facts presented, and here again no exception was taken. Considering the testimony, the result reached and the charge as a whole, we find neither errors nor incompleteness of such materiality that in fairness to plaintiff a new trial should be ordered.
All concur, except Sears, P. J., and Crosby, J., who dissent and vote for affirmance.
Order reversed on the law and facts, with costs, motion denied, and verdict reinstated, with costs.