Klimaszewski v. Herrick

At the defendant’s request, the court charged the jury “ that the plaintiff on May 16, 1940, took the defendant’s shop as he found it and that he assumed the ordinary risks of its every day and usual operation.” The plaintiff excepted. This instruction became the law of the case for the purpose of that trial only. Since the judgment was in the plaintiff’s favor, his exceptions are not up for review. (Fowler v. Anderson, 132 App. Div. 603.) A careful review of the record discloses no evidence that, at the time of the accident, the defendant was operating his plant in any way contrary to “ its…