Agnes Seney, as Administratrix, etc., of Joseph Seney, Deceased, Respondent, v. New York State Railways, Appellant

Fourth Department, July, 1915. Agnes Seney, as Administratrix, etc., of Joseph Seney, Deceased, Respondent, v. New York State Railways, Appellant. Railroad—negligence — charge. Appeal by the defendant from a judgment of the Supreme Court, entered on the 34th day of Hovember, 1914, in the office of the clerk of Herkimer county in favor of the plaintiff, and also from an order entered in said clerk’s office on the 3d day of December, 1914, denying defendant’s motion to set aside the verdict and grant a new trial. [MAJORITY — Per Curiam:] Per Curiam: We are of the opinion that the trial judge erred in charging a request made by counsel for the plaintiff, and that the error is so prejudicial as to require a new trial. After the defendant’s counsel had failed to have the trial judge charge that deceased had no right to assume, as a matter of law, that the car would be under control as it approached him and other similar requests, the judge leaving that question to the jury, the plaintiff’s counsel requested the court to charge that: “ Mr. Seney [the deceased] was not bound, as a matter of law, although he saw the car coming toward him in the distance, to wait until it passed, but he had a right to rely upon the motorman exercising due and reasonable care to permit him to cross the track in safety.” That was charged and the defendant’s counsel excepted. If Seney saw this ear approaching, and it was so near and going so fast as to be liable to strike him before he could cross, it could not he said, as a matter of law, that he would have a right to rely upon the motorman exercising reasonable care. That question should have been left as it had been charged. It was for the jury to say whether, under all the circumstances, he had the right to rely upon the motorman exercising due care. (Nardi v. Richmond Light & Railroad Co., 153 App. Div. 388.) The judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event. All concurred. Judgment and order reversed and new trial granted, with costs to appellant to abide event.