De Maria v. New York Central Railroad

Putnam, J.:

Plaintiff recovered under the Federal Employers’ Liability Act (35 U. S. Stat. at Large, 65, chap. 149, as amd. by 36 id. 291, chap. 143) for the death of the decedent, De Maria, an employee on defendant’s tracks at North White Plains. During a snow storm decedent, with one Mucci, was cleaning out switch No. 37, on a north-bound track. After brushing out the snow, kerosene oil was poured in to be lighted so as to thaw out the switch. Mucci was attempting to light the oil with deceased stooping over him. It was about six-ten a. m. when daylight was beginning. A freight locomotive backing south on this north-bound track ran upon the men, killing De Maria, and injuring Mucci. Against defendant were charges of not having a watchman stationed to warn of approaching trains, and omission of lights and signals by the backing engine. Earlier in the night Sam Belmont had been a watchman with a whistle to warn the trackmen. There was an issue whether deceased had taken over this duty, and had been handed the whistle to act as watchman. Defendant had settled with Mucci for his injuries. On this trial plaintiff called Mucci, who was examined through an interpreter. His testimony, as interrupted by the explanations of the interpreter, objections and rulings, covers fifty-eight printed pages. There were inconsistencies and contradictions about this alleged handing over of the whistle to the deceased. Thus the jury had the issues of signals by the backing engine, and whether deceased had himself undertaken the duty to watch and warn Mucci.

At the end of a clear charge under the Federal Employers’ Liability Act, counsel for defendant said: “ I ask your Honor to charge that if this man when sent there was given a whistle, they cannot recover.” The court: “ Yes.”

The jury rendered a sealed verdict in which they found plaintiff’s total damage at $16,000, which they reduced one-third for deceased’s contributory negligence.

Appellant contends that no recovery should be sustained under this instruction.

The majority of us, however, think that this request being erroneous under the Federal Employers’ Liability Act (which the charge had clearly explained as not denying any recovery in case of contributory negligence) was obviously not followed by the jury. If defendant’s counsel at the moment induced an erroneous instruction to the jury, he cannot afterwards urge what he had himself invited as reversible error. The jury is presumed to have taken the charge as a whole. (People v. Gilbert, 199 N. Y. 10, 26.) The special verdict removes all doubt. It stands on a finding based on the only substantial ground urged against plaintiff, which was the omissions of deceased as a watchman, for which the recovery has been properly lessened.

Therefore, the judgment and order should be affirmed, with costs.

Jenks, P. J., and Blackmar, J., concurred; Thomas, J., read for reversal, with whom Mills, J., concurred.