Phillips v. New York Cent. & H.R.R. Co.

• Decision Date: 02 June 1891
• Parties: PHILLIPS v. NEW YORK CENT. & H. R. R. Co.
• Court: New York Court of Appeals Court of Appeals

127 N.Y. 657

27 N.E. 978

PHILLIPS

v.NEW YORK CENT. & H. R. R. Co.

Court of Appeals of New York,

Second Division.

June 2, 1891.

Appeal from judgment entered upon order of the general term of the supreme court in the third judicial department, affirming judgment entered on a verdict in favor of the plaintiff. The action was brought to recover damages for personal injuries suffered by the plaintiff, and alleged to have been occasioned by the negligence of the defendant. In April, 1886, when the plaintiff, in a wagon drawn by a horse driven by Sebastian Putnam, her father, was going easterly, crossing the defendant's railroad tracks on State street, in the city of Schenectady, the horse became frightened and unmanageable, and the plaintiff was thrown from the wagon and injured. There was a gate in the street on each side of the railroad operated by the company to prevent travelers entering upon the tracks on the approach and passage there of its engines and trains. The wagon passed through the west gate without interruption, and the defendant's servant proceeded to lower the eastern gate while the wagon was on the track, and the difficulty occurred at that gate. Immediately on passing under it one of the lines or reins broke, the horse turned suddenly and upset the wagon, causing the injury.

S. W. Jaskson, for appellant.

D. M. Chadsey, for respondent.

BRADLEY, J., ( after stating the facts as above.)

The case as represented by the record, although a close one upon the evidence, presented questions of fact for the jury. The motion for nonsuit was properly denied. The defendant's counsel requested the court to charge the jury ‘that it was the duty of the defendant to give notice of the approach of its engines to travelers on the public streets approaching its tracks.’ The court, in declining to so charge, remarked that it was a very proper thing for the company to do. Exception was taken, and the court was also requested to charge that, if the plaintiff should be held entitled to recover, the jury must not allow her any damages for or on account of any inability to labor in the past or present, although such inability may have been caused by the injuries in question. This the court declined to charge, and the defendant excepted. The last request was founded on the fact, which had appeared, that the plaintiff was a married woman. To obviate those exceptions the jury, by the request and consent of the plaintiff's counsel, were soon after their retirement for consultation recalled into court by the justice presiding and charged, and both of such propositions were submitted to them as the defendant's counsel had requested. The counsel of the parties were then present, and it was legitimately within the power of the court to recall the jury and further charge them, or to correct any supposed error in the charge as made or in refusal to charge. But erroneous instructions can be effectually cured only by their withdrawal in terms so explicit and unequivocal as to preclude the inference that the jury may have been influenced by them. Chapman v. Railway Co., 55 N. Y. 579;Greene v. White, 37 N. Y. 405. In the present case the correction sought to be made was not of the charge, but was in the refusal to submit to the jury certain propositions, and when they were charged fully in compliance with the requests of the defendant's counsel it must be assumed that the instructions embraced in them were received by the jury as effectually as if the court had not previously declined to so charge them. It is not seen that the effect of the charge as made in those respects may have been qualified by the consent of the plaintiff's counsel to the correction. Assuming, therefore, that there was error in the refusal, it was cured by the subsequent compliance with the requests. The court...