Bopp v. New York Electric Vehicle Transp. Co.

• Decision Date: 15 December 1903
• Citation: 177 N.Y. 33,69 N.E. 122
• Parties: BOPP v. NEW YORK ELECTRIC VEHICLE TRANSP. CO. et al.
• Court: New York Court of Appeals Court of Appeals

177 N.Y. 33

69 N.E. 122

BOPP

v.NEW YORK ELECTRIC VEHICLE TRANSP. CO. et al.

Court of Appeals of New York.

Dec. 15, 1903.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Ida E. Bopp, by John H. Bopp, guardian ad litem, against the New York Electric Vehicle Transportation Company and another. From a judgment of the Appellate Division (79 N. Y. Supp. 1035) affirming a judgment for plaintiff, and denying a new trial, defendants appeal. Affirmed.

Parker, C. J., and Gray and O'Brien, JJ., dissenting.

NONSUIT-REFUSAL-WAIVER OF OBJECTIONS.

1. Where, on trial of an action for negligence against two defendants, one of them moves for a nonsuit, and, on denial of the motion, excepts thereto, but puts in its evidence, and again makes the motion, and again excepts on its denial, and cross-examines the witnesses of its codefendant to show that it was free from all responsibility, the refusal to grant the nonsuit is waived if at the close of the whole case the evidence presents a question for a jury.

Eugene Lamb Richards, Jr., for appellant New York Electric Vehicle transp. co.

Carl Schurz Petrasch and Alvin C. Cass, for appellant J. F. Otto Meyer.

T. F. Hamilton and Frank H. Smiley, for respondent.

VANN, J.

At the close of the plaintiff's evidence in chief, each defendant made a separate motion for a nonsuit, and each excepted to the action of the court in denying the motion. Each defendant had the right to then withdraw from the case and rest upon its exception. Neither did so. The vehicle company picked up the burden first, put in its evidence, and again moved for a nonsuit. Assuming that an exception was taken to the denial of its motion, for the second time it was in a situation to rely on its exception and refuse to take any further part in the trial. It did not do so. On the contrary, it continued to take an active and aggressive part in the trial, by cross-examining the witnesses of its codefendant thoroughly and at length. It aided in developing the facts, and attempted to defend itself against the allegations of the plaintiff, and the effort of the other defendant to fasten the responsibility upon it alone. It did not succeed, and it now claims that all its action, after its motions to nonsuit were denied, should go for naught and be ignored upon the ground that the question is the same as if it had withdrawn from the case at that time. We do not think so. It did not remain in the case for amusement, but for selfdefense, and it could not make further efforts to defend itself without running the usual risks. The plaintiff had the right to rely upon any evidence in her favor, whether it was put in by herself or by either defendant; and the vehicle company, by failing to withdraw when it had the right to, and continuing to take part in the trial, ran the risk that evidence tending to make it liable would be received. The situation does not differ in principle from the ordinary case where a sole defendant, instead of withdrawing when he fails to secure a nonsuit, continues to take part in the investigation to the end. In so doing, even if his motion should have been granted when made, the exception is undermined and becomes of no avail, provided at the close of the whole case the evidence presents a question for the jury. Thus, in Jones v. Union Railway Company, 18 App. Div. 267, 268,46 N. Y. Supp. 321, 322, Judge Cullen said: ‘When the defendant enters into its proof, the question never is whether the plaintiff's evidence is sufficient to justify the submission of the case to the jury, but whether, on the whole case, there is a question of fact as to the defendant's liability. If, at the close of a plaintiff's case, the defendant is confident that no cause of action has been made out, the only method of securing a review of an erroneous ruling on the point is to let the case stand without further evidence. If the defendant enters upon its evidence, it takes the chances of supplying the deficiencies of the plaintiff's case.’ So, in Hopkins v. Clark, 158 N. Y. 299, 304,63 N. E. 27, 28, we said through Judge Bartlett: ‘The rule laid down by the Supreme Court of the United States seems the proper one, to the effect that when a defendant, after the close of the plaintiff's evidence, moves to dismiss, and, the motion being denied, excepts thereto, and then proceeds with his case, and puts in evidence on his part, he thereby waives the exception, and the overruling of the motion to dismiss cannot be assigned as error.’ Judge Martin relied upon the case last cited, when, speaking for us all, he said: ‘Where, after a motion to dismiss at the close of the plaintiff's evidence, a defendant proceeds with his case and puts in evidence on his part, he thereby waives the exception to the refusal to nonsuit when the plaintiff rested.’ Sigua Iron Co. v. Brown, 171 N. Y. 488, 506,64 N. E. 194, 200. The rule of the federal courts was expressed by Chief Justice Waite as follows: ‘It is undoubtedly true that a case may be presented in which the refusal to direct a verdict for the defendant at the close of the plaintiff's testimony will be good ground for the reversal of a judgment on a verdict in favor of the plaintiff, if the defendant rests his case on such testimony and introduces none in his own behalf; but if he goes on with his defense, and puts in testimony of his own, and the jury, under proper instructions, finds against him on the whole evidence, the judgment cannot be reversed, in the absence of the defendant's testimony, on account of the original refusal, even though it would not have been wrong to give the instruction at the time it was asked.’ Grand Trunk Railway Co. v. Cummings, 106 U. S. 700, 701, 1 Sup. Ct. 493, 27 L. Ed. 266. See, also, Littlejohn v. Shaw, 159 N. Y. 188, 191,53 N. E. 810;Wangner v. Grimm, 169 N. Y. 421, 427,62 N. E. 569;Accident Insurance Co. v. Crandal, 120 U. S. 527, 7...