Whalen v. Fonda, Johnstown & Gloversville Railroad

Smith, J. (dissenting):

The jury has found both plaintiff and defendant negligent.. Their conclusion warrants the judgment entered, provided they were guided to that conclusion by proper rules of law stated by the trial judge in his ’“charge. In stating what duty-was required of the plaintiff, the trial judge said: “If they had the duty to look when they entered on the track, did they not have a duty to .continue to look — I so charge you; that their duty was not fully performed by looking to see a car when they entered upon the track, but they should continue the observation so long as they…