Groner v. Delaware & Hudson Canal Co.

Opinion by

Mr. Chief Justice Sterrett,

If the jury’s attention was not called to all the questions of law involved in this case, it was not the fault of learned counsel on either side. It appears that forty-two points for charge —fourteen by plaintiff and twice that number by defendant— were presented and fully answered by the learned president of the court. In the main, his answers appear to have been satisfactory to both parties, for tbe only subjects of complaint here are bis refusal to affirm defendant’s nineteenth, twentieth, twenty-third and twenty-eighth points, respectively, as presented. In the latter he was requested to charge: “ Under all the evidence in this case the verdict of the jury must be for the defendant.” This he very properly refused to do, for the very good reason that the evidence tended strongly to show that defendant’s negligence caused the injury complained of, and there was no admitted or undisputed fact or facts in the case that would have justified him in declaring, as matter of law, that plaintiff was guilty of any negligence that contributed to her injury. An examination of the somewhat voluminous testimony shows that defendant’s liability depended on questions of fact which were clearly for the consideration and determination of the jury. These questions were fairly submitted to them in a very clear and comprehensive charge, which appears to be free from error.

For reasons above suggested, there was no error in the learned judge’s answers to either of the points recited in the first three specifications, in which he was substantially requested to say that, under certain facts and circumstances therein stated, the plaintiff was guilty of contributory negligence and could not recover. The facts and circumstances, of which these points are respectively predicated, were neither admitted nor established by undisputed evidence, and hence it would have been manifest error to have affirmed them without qualification.

Referring to the twentieth point, the learned judge said, in substance: If this means to ask us to say, as matter of law, that it was physically impossible for plaintiff not to have seen the train approaching the crossing, we cannot affirm it. “ If it means, — and we so understand it to mean, — that if you find that it was a physical impossibility for her not to see this train moving, if she looked, we think the point is well taken. As we read the point, we think it asks us to say that it is shown by the undisputed testimony that it was a physical impossibility, and we decline to say that. That is a matter for you and not for the court.” This was clearly correct.

There is nothing in the undisputed facts of this case, as they appear from the testimony, to bring it within the principle of Carroll v. Railroad Co., 2 Penny. 159, and that line of cases.

Neither of the specifications of error is sustained.

Judgment affirmed.