Pell v. Long Island Railroad

Judgment and order reversed and new trial granted, costs to abide the event, upon the grounds: (a) That the finding imported by the verdict, to the effect that the whistle did not blow, is against the greater weight of the evidence; (b) that the charge was confusing upon certain material points, viz., in charging, in effect, that negligence could be found from the absence of a flagman and later that it could not, and in charging in like contradiction as to the question of speed; and (c) that the charge upon the subject of the signboard or post was erroneous. It is to be noted that the response to the thirty-fourth request to charge was in effect to grant it, viz.: “I have already charged this proposition.” Jenks, P. J., Mills and Putnam, JJ., concurred; Thomas and Stapleton, JJ., voted to affirm.