Huerzeler v. Cent. Cross-Town R. Co.
| Decision Date | 24 October 1893 |
| Parties | HUERZELER v. CENTRAL CROSS-TOWN R. CO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from common pleas of New York city and county, general term.
Action by Fritz Huerzeler against the Central Cross-Town Railroad Company to recover damages for the death of his child five years old. From a judgment of the general term (20 N. Y. Supp. 676) affirming a judgment of the special term in favor of plaintiff for $2,000, defendant appeals. Affirmed.
Wolff & Hodge, (Robert Sewell, of counsel,) for appellant.
Russ & Heppenheimer,(Henry Schmitt, of counsel,) for respondent.
This action was brought to recover damages for the death of the plaintiff's infant daughter, caused upon the defendant's railway track in the city of New York, through the negligence of the driver of the horses attached to one of its cars. At the close of the evidence the trial judge charged the jury, and there were many requests by both sides to charge, some of which were granted and some refused. After the charge was finished, and the jury had retired, the counsel for the defendant excepted as follows: ‘To the granting of the requests on the other side, and a refusal to charge those of mine that were not charged;’ and there was no other exception to the charge or refusal to charge. It is conceded by the learned counsel for the defendant that this general exception was wholly insufficient to present any question for review in this court, and so we have uniformly held. Smedis v. Railroad Co., 88 N. Y. 13;Newall v. Bartlett, 114 N. Y. 399, 21 N. E. Rep. 990; Read v. Nichols, 118 N. Y. 224, 23 N. E. Rep. 468. It is therefore not important to criticise the charge, or to determine whether the trial judge committed any error therein. The case is before us precisely as if the whole charge had been omitted therefrom. The main exception, therefore, which presents any question of law to us, is the one taken to the denial of the defendant's motion to dismiss the complaint on the ground that there was no negligence chargeable to the defendant, and that there was no proof of the absence of contributory negligence. We have read the evidence, and are satisfied there was sufficient bearing upon the negligence chargeable to the defendant for submission to the jury. That fact being established, the defendant could defeat the plaintiff only by showing-the child being non sui juris-that her mother was negligent in permitting her to be in the street, and, that fact being established,...
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