Bopp v. New York Electric Vehicle Transp. Co.,

CourtNew York Court of Appeals
Writing for the CourtVANN
Citation177 N.Y. 33,69 N.E. 122
Decision Date15 December 1903
PartiesBOPP v. NEW YORK ELECTRIC VEHICLE TRANSP. CO. et al.

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.

177 N.Y. 33]Eugene Lamb Richards, Jr., for appellant New York Electric Vehicle transp. co.

[177 N.Y. 34]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 [177 N.Y. 35]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...

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17 practice notes
  • Evans v. Cheyenne Cement, Stone & Brick Company, 673
    • United States
    • United States State Supreme Court of Wyoming
    • March 24, 1913
    ...Co. (Mont.), 102 P. 316; Elmensorf v. Golden (Wash.), 80 P. 266; Weil v. Nevitt (Colo.), 31 P. 488; Bopp v. Electric &c. Co. (N. Y.), 69 N.E. 122; Bostwick v. Willett (N. J.), 60 A. 398; Esler v. Ry. Co. (N. J.), 58 A. 113; Dimuria v. Transfer Co. (Wash.), 97 P. 657; Ryan v. Lambert (Wa......
  • Ordway v. White
    • United States
    • New York Supreme Court Appellate Division
    • June 30, 1961
    ...so, the evidence subsequently introduced by a codefendant could not be used against him (Bopp v. New York Electric Vehicle Transp. Co., 177 N.Y. 33, 69 N.E. 122; Ward v. Iroquois Gas Corp., 258 N.Y. 124, 179 N.E. 317). This was changed by the amendment of section 211 of the Civil Practice A......
  • Griffin v. Clinton Green S., LLC., Index No.: 14897/07
    • United States
    • United States State Supreme Court (New York)
    • March 31, 2011
    ...including the proof adduced by the defendants which cures any defects in the plaintiff's case. See Bopp v. New York Elec. Veh. Tramp. Co., 177 N.Y. 33, 35 (1903). In considering such a motion, "the trial court must afford the parly opposing the motion every inference which may properly......
  • Cincinnati Traction Co. v. Durack
    • United States
    • United States State Supreme Court of Ohio
    • May 19, 1908
    ...the motion to dismiss at the close of the whole evidence. * * *’ [Ohio St. 253]The same court in Bopp v. N. Y. Elec. Vehicle Transp. Co., 177 N. Y. 33, 69 N. E. 122, again makes the same ruling. In one of our new states the same question arose, and was taken to the Supreme Court for determi......
  • Request a trial to view additional results
17 cases
  • Evans v. Cheyenne Cement, Stone & Brick Company, 673
    • United States
    • United States State Supreme Court of Wyoming
    • March 24, 1913
    ...Co. (Mont.), 102 P. 316; Elmensorf v. Golden (Wash.), 80 P. 266; Weil v. Nevitt (Colo.), 31 P. 488; Bopp v. Electric &c. Co. (N. Y.), 69 N.E. 122; Bostwick v. Willett (N. J.), 60 A. 398; Esler v. Ry. Co. (N. J.), 58 A. 113; Dimuria v. Transfer Co. (Wash.), 97 P. 657; Ryan v. Lambert (Wa......
  • Ordway v. White
    • United States
    • New York Supreme Court Appellate Division
    • June 30, 1961
    ...so, the evidence subsequently introduced by a codefendant could not be used against him (Bopp v. New York Electric Vehicle Transp. Co., 177 N.Y. 33, 69 N.E. 122; Ward v. Iroquois Gas Corp., 258 N.Y. 124, 179 N.E. 317). This was changed by the amendment of section 211 of the Civil Practice A......
  • Griffin v. Clinton Green S., LLC., Index No.: 14897/07
    • United States
    • United States State Supreme Court (New York)
    • March 31, 2011
    ...including the proof adduced by the defendants which cures any defects in the plaintiff's case. See Bopp v. New York Elec. Veh. Tramp. Co., 177 N.Y. 33, 35 (1903). In considering such a motion, "the trial court must afford the parly opposing the motion every inference which may properly......
  • Cincinnati Traction Co. v. Durack
    • United States
    • United States State Supreme Court of Ohio
    • May 19, 1908
    ...the motion to dismiss at the close of the whole evidence. * * *’ [Ohio St. 253]The same court in Bopp v. N. Y. Elec. Vehicle Transp. Co., 177 N. Y. 33, 69 N. E. 122, again makes the same ruling. In one of our new states the same question arose, and was taken to the Supreme Court for determi......
  • Request a trial to view additional results

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