Martini v. Long Island Railroad

Judgment and order of the County Court of Queens county reversed and new trial ordered, costs to abide the event, for failure to charge the request contained at folio 173 of the record. Jenks, P. J., Burr and Rich, JJ., concurred; Hirsehberg and Thomas, JJ., dissented upon the ground that notice is a legal term used in the classification of actual and constructive knowledge. Hence, the defendant erroneously requested that recovery could not be had unless the jury found a term used in law to denote knowledge communicated or knowledge implied. It is the function of the jury to find facts and not terminology. Moreover, the request was faulty in that it made the recovery dependent upon the notice of a “deep cavity.” The defendant’s counsel was attempting to preclude recovery unless the jury found notice of a “ deep cavity.” The court properly charged that the cavity must be of a sufficient depth to make it a negligent act on the part of the defendant to allow it to be maintained without repairs. But the defendant was not permitted to await a deep cavity, or one sufficiently large to entrap the foot of a traveler, but it was its duty, if it had or should have had knowledge, to make the repairs before the dangerous depth had been attained. The request is erroneous in form and substance, and there should be affirmance.