Allison v. Long Clove Trap Rock Co.

The facts of this case, as they were made to appear upon the first trial, are fully set forth in the opinion of Mr. Justice HIRSCHBERG, reversing the judgment originally entered upon a dismissal of the complaint. Allison v. Long Clove Trap Rock Co., *83475 App. Div. 267, 78 N. Y. Supp. 69. The case as presented in the appeal book now before us is stronger for the plaintiff than it was then. A brakeman named Flynn, who was an important witness of the accident, was not called upon the first trial. His testimony appears in the present record, and the account' which he gives of the manner in which the accident occurred indicates that it was because of the failure of the brake to work. This additional evidence makes it clearer than ever that there was a question for the jury, and we cannot now hold otherwise without reversing our previous decision.

We have examined the various rulings of the learned trial judge to which the appellant has called our attention, and find none which involves any error. While some of the responses to the defendant’s requests to charge might be subject to criticism if they stood alone and without qualification, they seem to us to be correct in every instance, when considered in connection with the instructions to the jury as a whole. The judgment and order appealed from should be affirmed.

Judgment and order unanimously affirmed, with costs.