Defendant's counsel asked the court "to charge that if the jury find that there were no defects in the track at the place wherethey find the derailment occurred, their verdict must be for the defendant *Page 34 no cause of action." He did not ask the court to charge squarely that "unless the jury find that the derailment was due to a defect in the track the plaintiff cannot recover." The exception to the refusal to charge is not fatal. On the whole charge, the question was fairly submitted. Counsel's request was argumentative. I dissent.
HISCOCK, Ch. J., HOGAN, McLAUGHLIN and CRANE, JJ., concur with ANDREWS, J.; POUND, J., reads dissenting memorandum; CARDOZO, J., not voting.
Judgment reversed, etc.