
    Heinrich Eckensberger, an Infant, etc., Resp’t, v. Bernard G. Amend, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed November 5, 1894.)
    
    1. Appeal—Dismissal of complaint.
    Failure to except to the denial of a motion for the dismissal of the complaint, or the direction of a verdict, made when all the proof is in, concedes that there is sufficient evidence to carry the case to the jury and to support the verdict.
    2. Appeal—Order denying motion for new trial.
    No appeal to the common pleas lies from an order denying a motion for a new trial.
    3. Appeal—Charge—Negligence.
    Refusal to charge, in an action for personal injuries, that “ if the view was unobstructed and the wagon in plain sight, it is evidence of negligence if the plaintiff did not see it approaching,” is error, where the request does not involve an assumption of facts contrary to the evidence.
    Appeal from a judgment of the general term of the city court of New York, which affirmed a judgment entered upon a verdict in favor of the plaintiff and an order denying a new trial.
    Action for personal injuries.
    
      Charles C. Nadal, for app’lt; Alfred & Charles Stechler, for resp’t.
   BischoEE, J.

The judgment of affirmance of the court below precludes examination into the evidence in this case for the purpose of determining the preponderance, Arnstein v. Haulenbeek, 16 Daly, 382; 34 St. Rep. 297; Smith v. Pryor, 16 Daly, 169, 30 St. Rep. 553; Rowe v. Comley, 11 Daly, 318, and failing an exception to the denial of a motion for a dismissal of - the complaint or the direction of a verdict, made when all the proof was in, we must assume that there was sufficient evidence to carry the case to the jury and to support the verdict. Barrett v. Third A. R. R. Co., 45 N Y. 628; Schwinger v. Raymond, 105 Id. 648; 7 St. Rep. 544. No such motion having been made in the case at bar, the exception to the denial of. appellant’s motion for dismissal, made when plaintiff rested, presents no ground for review, he having elected to submit the issues to the jury upon the whole evidence without objection, Sternwald v. Siegel, 57 St. Rep. 491; Barrett v. Third A. R. R. Co., 45 N. Y. 628, 632. The exception taken to the denial of the motion for a new trial is not available upon this appeal, Myers v. Cohn, 7 Misc. 185; and no appeal lies from the order denying such motion. Code Civ. Pro. § 3191; Pharo v. Beadleston, 2 Misc. 424; 50 St. Rep. 609.

While we are thus concluded as to the facts relating to the accident in suit, yet the remaining exception in the case presents error which calls for a reversal of the judgment. This exception was taken to the refusal of the trial justice to charge that “If the view was unobstructed, and the wagon in plain sight, it is negligence if the plaintiff did not see it approaching.” While the failure of a wayfarer, crossing a street, to look for approaching danger is not actual negligence as a matter of law, as it would be in the case where the crossing of a railroad track is attempted, yet the rights and obligations of pedestrians and drivers are correlative and each owes a duty to the other to avoid an accident. Reens v. Mail & Exp. Pub. Co., handed down herewith. The appellant was entitled to tlie charge as requested, leaving it to the jury to find how far the surrounding circumstances justified the plaintiff’s failure to see the approaching wagon, which failure unexplained by such circumstances, would certainly be evidence of a nonobservance of the duty, owing from him to the driver of the vehicle, Moebus v. Hermann, 108 N. Y. 349; 13 St. Rep. 648. The refusal to so charge was in effect a ruling that all the duty of avoiding the accident, in such a case, was upon the defendant’s servant, and it cannot be said that prejudice did not thereby result. According to the plaintiff’s testimony, the wagon came around the corner and then ran over him, but the defendant’s driver testified, on,the contrary, that he drove directly along the street, and was in plain view of the boy for a considerable space. While the jury may have believed the plaintiff’s story in this regard, and so have found that the wagon could not have been seen by him in time to avoid the accident, yet, in view of the conflicting testimony noticed, the request did not involve an assumption of facts contrary to the evidence, and the ruling made is not to be otherwise justified.

Judgment of the general and trial terms below reversed, and a new trial ordered, with costs to abide the event.

All concur.  