Schwartz v. Metropolitan Street Railway Co. , 78 N.Y.S. 886 ( 1902 )

Conlan, J.

The action was brought to recover damages for the alleged negligence of the defendant in operating one of its •cars. So far as the facts of the case are concerned, it may with truth be said that there is scarcely a single point on which both parties are in accord, and the evidence thus adduced upon the trial was submitted to the jury in a charge which was eminently fair to both sides. Indeed, the only exception to the charge presented for our consideration, was to the refusal of the trial justice to charge as requested by the plaintiff, that “ irrespective of stopping the car at either corner of Grand street, if the jury find that the defendant was negligent in running that car after the plaintiff had fallen, and while he was being dragged along the ground until the car came to a stop, then the verdict should be for the plaintiff.” A decision of this question in the plaintiff’s favor would have ■entirely eliminated from the ease the question of the plaintiff’s contributory negligence. Wright v. Third Ave. R. R. Co., 70 N. Y. Supp. 709. And this precise question was one which the defendant was entitled to have submitted to the jury. The jury determined the whole case upon a sharp conflict of evidence, and with their determination we are not disposed to interfere.

The judgment and order appealed from must he affirmed, with costs.

Eitzsimons, Oh. J., and Seabhry, J., concur.

Judgment and order affirmed, with costs.