Citation Numbers: 95 A.D. 106, 88 N.Y.S. 447
Judges: Hirschberg
Filed Date: 7/1/1904
Status: Precedential
Modified Date: 1/13/2023
A number of questions are presented upon this' appeal, but in the view taken one only requires determination. The plaintiffs’ in tes
The learned counsel for the respondents alleges in his brief that no claim was made upon the trial that the decedent was killed through the conductor’s negligence, and asserts that “ the, proof that Hess, the conductor, was engaged in conversation with Baldwin and Bauman, and that they were laughing down until the time the car came to a full stop, was offered to show that neither of the three heard anything to indicate danger and did not know that any danger was to be apprehended until the car had come to a full stop.” As I have said, it does not appear that the evidence was offered for the purpose stated, and the refusal to charge as requested might well be regarded by the jury as equivalent to an instruction that they might find for the plaintiffs if they considered the conductor to have been negligent in talking and laughing with the passengers when by an alert attention to his duty he might have done something to avert the disaster. If the evidence given of his behavior was not intended to charge the conductor with. negligence, the defendants were clearly entitled to have the jury so informed. It cannot be said that the jury was not misled, for even the court will sometimes regard the behavior of a conductor as proof of negligence
The judgment and order should be reversed.
All concurred.
Judgment and order reversed and new trial granted, costs to abide the event.