
    Mary Whalen, as Administratrix, etc., of Patrick F. Whalen, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    Second Department,
    June 2, 1916.
    Railroad — death of employee engaged in switching ears — interstate commerce — appeal — charge requested by defendant.
    Where the contents óf a freight car of a train by which the plaintiff’s intestate was killed while engaged in switching it, were destined fox-points without the State, the decedent was engaged in interstate commerce.
    On an appeal, a defendant is estopped from questioning the propriety of a charge which it specifically requested the court to make.
    Appeal by the defendant, The New York Central and Hudson Eiver Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 31st day of July, 1915, upon the verdict of a jury for $32,500, later reduced by consent to $26,000, and also from an order entered in said clerk’s office on the same day, denying defendant’s motion for a new trial made upon the minutes, upon condition that plaintiff stipulate to reduce the verdict as above stated.
    
      John F. Brennan, for the appellant.
    
      Humphrey J. Lynch, for the respondent.
   Per Ouriam:

This court is of opinion that the judgment and order in this case should not he reversed on the appellant’s claim that the verdict rendered by the jury was in opposition to the charge of the trial court at folio 383. The specific instruction there appearing was made at the defendant’s request. There was no controversy in the proofs that the train which was being switched by the decedent at the time of the accident was composed of freight cars, none of which was to go beyond Buffalo; that is, beyond this State. If it was intended by the trial court to charge the jury that no liability could attach to the defendant on the ground that it was engaged in interstate commerce, unless some car in the train was “ going beyond Buffalo,” such an instruction would have been equivalent, as the proofs stood, to a direction of a verdict. It is evident that the trial court had no such intention, for it would have been most obvious error to have instructed the jury to that effect under the proofs in the case. The plaintiff had set out to prove that the train then being switched had a car that was filled with freight, taken on at the Fleischmann yard, which was consigned to various points outside this State. This car was referred to generally in the testimony as the “Soo car,” or the “Ferry car,” orear “No. 17,212.” That' car, because of the destination of its contents, was being used at that time in interstate commerce. The counsel for the defendant introduced into the case whatever confusion may have been caused, if any existed in the minds of the jurors, for he specifically requested the trial court, at folio 379, to charge as follows: “I ask your Honor to charge that at the time of the happening of the accident the car known as the Soo car, No. 17,212, was being transferred by this locomotive and by Whalen to this east side switch.” And on this request the court so charged. If this was a proper charge, and the defendant having requested it, is now estopped from questioning its propriety, the defendant cannot now complain.

The judgment and order should be affirmed, with costs.

Present—Jerks, P. J., Thomas, Carr, Rich and Putnam, JJ.

Judgment and order unanimously affirmed, with costs.  