Opinion
February, 1929.
Judgment reversed upon the law and the facts and new trial granted, costs to abide the event. We are of opinion that the verdict of the jury was against the weight of the evidence and that the learned trial court erred in declining to charge as requested at folio 366 of the record. ( Kretik v. N.Y. Central R.R. Co., 227 N.Y. 474, 477.) Rich, Hagarty and Scudder, JJ., concur; Lazansky, P.J., and Young, J., dissent, being of opinion that the verdict is not against the weight of the evidence upon the question of defendant's negligence and that the refusal of the court to charge as requested at folio 366 was not error under the circumstances, it appearing that the engineer failed to observe his usual custom to take the signals from the fireman when rounding a curve (Fols. 267-269). If he did not do that, the jury might say that he should have made observations himself out of the side window, it appearing that by so doing he could have seen the crossing probably in time to prevent the accident.