Barry v. Boston & Maine Railroad

Judgment and order affirmed, with costs. Whitmyer, Hill and Hasbrouek, JJ., concur; Hinman, J., dissents and votes for reversal and new trial on the ground that on the testimony of the plaintiff himself the verdict of the jury is against the weight of the evidence as to the negligence of the defendant; and on the further ground that the court erred in refusing to charge, as requested, that “ if Davis did actually direct his remarks to Smith and that Barry erroneously thought Davis was directing his remarks to him, that that was Barry's error and he cannot recover.” Van Kirk, P. J., concurs with Hinman, J., on the latter ground.