Misc.] Superior Court of Buffalo, December, 1895. passage, through which was discharged hot water used in the brewery. This hole was covered with an iron grating. On the day in question the sister drove first to the office of the brewery, made inquiry for slops, was informed that there was none that day. Notwithstanding this information she drove. to the rear of the brewery where the slop box was situated, made inquiry there, and was again informed that there was none. At this time plaintiff alighted from the wagon to answer a call of nature and entered the tunnel, passed along to the grating and stepped upon it; it tipped and let him in and his lower limbs were severely scalded. We are unable to find upon these facts any ground upon which to charge defendants with liability. No permission was given by defendants to use the passageway; it was not necessary for plaintiff to use it for any of the purposes connected with his visit to the brewery or in getting slops; there was no closet or urinal there, and it was not used for such purposes. If he had an implied right to enter, sufficient to exclude the entry from being trespass, his right was no higher than that of a mere licensee, and he accepted the passage in the condition it then was and took upon himself whatever of risk there was in its use. This rule is recognized in the cases cited by plaintiff upon this motion. (Nicholson v. Erie Ry. Co., 41 N. Y. 525; Larmore v. Crown Point Iron Co., 101 id. 391; Barry v. N. Y. C. & II. R. R. R. Co., 92 id. 289; Beck v. Carter, 68 id. 283), and is reiterated in Cusick v. Adams, 115 N. Y. 55; Sterger v. Van Sicklen, 132 id. 505. Where there is an invitation to enter, either express or implied, or the person is enticed, induced or allured to enter upon the premises, the rule is different. An illustration is found in Walsh v. Fitchburg R. Co., 22 N. Y. Supp. 441, and cases cited. Or where an affirmative act increases the danger and inflicts injury. Corrigan v. Union Sugar Refinery, 98 Mass. 577. These latter cases are without application, for here existed none of these conditions. Liability can only be predicated upon the violation of some legal duty which defendants owed to plaintiff, within the authority of the cases just cited, and upon Superior Court of Buffalo, December, 1895. [Vol. 15. present facts defendants owed plaintiff no duty, in consequence of which no liability can attach. The exceptions should be overruled and the motion denied. TITUS, Ch. J., concurs. Exceptions overruled and motion denied. MARY A. DONAHUE, as Administratrix, Respondent, v. THE NEW YORK CENTRAL & HUDSON RIVER RAILROAD Co., Appellant. (Superior Court of Buffalo - General Term, December, 1895.) 1. NEW TRIAL-MISDIRECTION BY COURT. A new trial may properly be granted where the court has erroneously instructed the jury as to the effect of an ordinance prohibiting the blowing of whistles in the city, when there was no proof of such an ordinance, and in fact no such ordinance existed. 2. SAME. The court has power to grant a motion for a new trial with or without an exception. 3. SAME. Where neither the party aggrieved nor his counsel was present when the misdirection was given, the question may be raised as though a formal exception had been taken. APPEAL by defendant from an order granting plaintiff's motion for a new trial made upon the minutes of the court. James F. Gluck, for appellant. Brown & Silver, for respondent. HATCH, J. The special ground of error assigned upon the motion consisted in a misdirection of the court to the jury respecting a question of law. The action was to recover damages for causing the death of plaintiff's intestate. After the juzy had retired for deliberation they asked for further instructions, and, being brought into court, asked if defendant was responsible for the negligence of the fireman in not blowing Misc.] Superior Court of Buffalo, December, 1855 the whistle when he saw these men approaching the tracks. The court replied: "Not necessarily; they are not compelled either to blow the whistle or ring the bell, but it is necessary for them to use care and diligence in approaching a crossing to avoid injuring people. Whether they should have done something more than they did, is for the jury to say, in order to reasonably insure the lives or safety of the people. There is no law that requires them to ring a bell or blow a whistle. By a juryman: The question is whether they exercised due diligence in regard to the safety of these men, when the fireman saw them, in not giving warning. By the Court: You must determine that question, whether the railroad company ought to have done more to reasonably insure the safety of the people passing over the street. That becomes material if you find the plaintiff's intestate was free from negligence, because if the dead man was in any way negligent, it would not make any difference whether the railroad company was negligent or not. Mr. Gluck: Under the city charter we are not allowed to blow any whistle at all. The court will take notice of that. By the Court: Yes, I think they are not permitted by the ordinances to do that. By a juryman: In order to save life would it not have been right and fair not to pay attention to the ordinances? By the Court: No, the railroad employees had a right to obey the law. It was their duty to conform to the law. The real question for you is, whether the railroad company exercised reasonable care and diligence in trying to protect people." It is apparent that the jury had a clear conception of the point at issue, and that they thoroughly understood the charge of the court, and appreciated the fact that the ordinance prohibiting the blowing of the whistle was one of controlling importance, and they desired to be left untrammelled by its effect, if that were possible, in determining the liability of defendant. This condition was produced by defendant's counsel, as in other respects the court's charge was unexceptionable and properly stated the rule of law. We are, therefore, able to say that the charge that no whistle could be Superior Court of Buffalo, December, 1895. [Vol. 15. blown quite likely produced the verdict which the jury finally rendered. The instruction of the court was clearly erroneous. No ordinance had been proved in the case, and there was nothing in the evidence upon which to base the charge; consequently no evidence upon which the jury could relieve defendant of an act of negligence for a failure to blow its whistle, if such action was proper and necessary to signal its presence and give due warning to deceased. It can, therefore, be said that such act upon their part was not only contrary to evidence, but contrary to law, and the court has always been authorized to set aside verdicts under such circumstances. Standard Oil Co. v. Amazon Ins. Co., 79 N. Y. 506; Wasilewski v. Wendell, 9 N. Y. St. Repr. 508. In fact, there was no such ordinance as that invoked by defendant. The ordinance only prohibited the blowing of a whistle when it was not essential for signal purposes. § 4, Ordinances, City Charter, p. 42. It is claimed that no exception was taken to the charge, in consequence of which no question was presented, and could not be, on a motion for a new trial based upon section 999, Code Civil Procedure. That the court has the power to grant a motion for a new trial with or without an exception does not seem to be disputed, nor can it be successfully. McDonald v. Walter, 40 N. Y. 555; Whittaker v. D. & H. Canal Co., 49 Hun, 400. It is doubtful if the claim that no exception was taken can be upheld. The record shows that the jury was returned into court, and when the instructions were given it does not appear that plaintiff or her attorney was present. The record shows that defendant's attorney was present and participated in the instruction, and was in fact responsible for the erroneous charge. We must assume that the record states all that transpired, and that does not show that plaintiff or counsel was present. Where such is the case the party may raise the question as though a formal exception had been taken. Wheeler v. Sweet, 137 N. Y. 435. It is true that affidavits are attached to the record, and that Misc.] Superior Court of Buffalo, December, 1895. such affidavits show that a clerk of plaintiff's counsel was present and assented to the charge as made. We are not now called upon to express an opinion upon the effect of the action of the clerk, for the reason that these affidavits are not now before us. They are not recited in the order, nor does it appear that the judge considered them or that he was expected to consider them upon the merits of the motion. The brief of the respondent states that they were used to secure a postponement of the hearing, and their contents seem to point in that direction. But, however that may be, they form no part of the record, as they are not recited in the order as having been used, and nothing appears to show that they were used upon the merits of the motion. Thompson v. Taylor, 13 Hun, 201; Smith v. Smith, 43 N. Y. Super. Ct. 140. If, however, the contention could be sustained, that it was essential to make a case in order to present the ground of error, it is sufficient in answer to say that there is a case now before this court clearly presenting the ground of error, and that this court is now possessed of power to correct the error with or without an exception, and we think this a proper case for the exercise of the power. Roberts v. Tobias, 120 N. Y. 1; Hogan v. Central, etc., Railroad Co., 124 id. 647; Benedict v. Johnson, 2 Lans. 94; Panama Railroad Co. v. Charlier, 27 N. Y. St. Repr. 381. There can be no ground of complaint made by defendant to this rule. No objection was raised before the court below that it was without power to grant the relief or that the practice was in any sense irregular, and now, having prepared the proper record and brought it into this court, he should not be heard to complain if this court now exercises upon a proper record its power to correct the error which the record discloses. If we could now say that the court below had no power to correct the error upon a motion made under section 999, the question now here would not be answered, for among the grounds of motion is a separate statement of the ground of error relied on here, independent of those embraced in that section, and upon which, we think, the court below had the |