Wesley J. Penny, by Guardian ad Litem, Respondent, v. Rochester Railway Company, Appellant

Wesley J. Penny, by Guardian ad Litem, Respondent, v. Rochester Railway Company, Appellant. Penny v. Rochester R. Co., 7 App. Div. 595, affirmed. (Argued December 2, 1897; decided December 17, 1897.) Appeal, by certification, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 24, 1896, which unanimously affirmed a judgment in favor of plaintiff entered upon a verdict, and also affirmed an order denying a motion for a new trial. The questions certified were as follows: First. Did the trial court err in sustaining the plaintiff’s objection to the following question put by the defendant’s counsel to John Greenwood, a witness sworn for the plaintiff, to wit: “ Q. Did you enter your grandfather’s house in the night time, through an open window, and take from the room an article of value and carry it away with you without his permission ? ” Second. Did the trial court err in submitting to the jury the question whether, the plaintiff, at the time of the accident, was or was not non sui juris, and in refusing to charge as requested by the defendant’s counsel that on the evidence in the case they could not find that the plaintiff was, at the time of the accident, non sui juris ? Third. Did the trial court err in refusing to charge unqualifiedly the proposition requested by the defendant’s counsel, that if the jury find that the plaintiff saw the car coming and heard the signal and ran out in front with the purpose of getting across ahead of it, and failed, that that was contributory negligence in him as matter of law that bars a recovery here ? Charles J. Bissell for appellant. Henry M. Hill for respondent. [MAJORITY] Judgment affirmed, with costs, on opinion below, and each question certified answered in the negative. All concur, except Haight, J., absent.