Devlin v. New York City Railway Co. — 116 A.D. 894

Majority

p. 894

Edward E. Devlin, Respondent, v. New York City Railway Company, Appellant.

Second Department,

January 31, 1907.

Headnote

Trial — exception to remarks of juldge — erroneous charge as to speed of car.

Respect should be shoym.to the trial judge and carping exceptions to his harmless pleasantries or wholesome remarks should not be taken. Thus, if he say to an expert witness Who hoped the-plaintiff would recover “you expect what

. is probable; yohr hope may be very-improbable,” an- exception thereto is not well taken..

When it appears that the plaintiff was thrown from a surface car which had just crossed another car line and some witnesses testify that it was moving three- or four miles an hour and other witnesses that it was going slowly, it is error for the court to charge that the jury must find either that the car was moving three or four miles an hour or was standing still and that there was no middle ground.

p. 895

Appeal by the defendant, the New York City Bail way Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bichmond on the 10th day of March, 1906, upon the verdict of a jury for $12,500, and also from an order entered in said clerk’s office on the 30th day of March, 1906, denying the defendant’s motion for a new trial made upon the minutes.

John V. Bouoier, Jr. [Bayard H. Ames and James L. Quackenbush with him on the brief], for the appellant.

George M. Pinney, Jr. [ Walter C. Shoup with him on the brief], for the respondent.

The plaintiff’s doctor who testified to his injuries was brought to say on cross-examination by leading questions that he hoped the plaintiff would in time be able to walk without a cane. The trial judge said: “ You expect what is probable; your hope may be very improbable.” The defendant’s counsel said he excepted to the remark. Counsel for the appellant styles this remark of the court “ the active patronage of the court” to the plaintiff’s side. This is improper. He refers to no other incident of the trial to justify it, and there was none. ' A trial judge is not reduced to such constraint that he may not make remarks on.occurrences of the trial, and in this case the remark was wise, appropriate and instructive. Even in the worst case we habitually hope for the best, but that is very different to expecting it ;■ we expect what is probable. The exception should never have been taken. Due respect should always be shown to trial judges, and carping exceptions to harmless pleasantries or wholesome remarks by them are not consistent therewith: To use such exceptions as a cover for disrespect should not shield the offender.

The exception to the charge is good. The plaintiff and his witnesses testified that the car had stopped and that as he was getting on it started and threw him off. Four witnesses for the deféndant testified that it was going about three or four and one about four or five miles an hour; another that he thought the Car was moving, and another that it was going very slowly. At the request of the

p. 896

defendant’s counsel tlxe trial judge charged that if the car was moving when the plaintiff attempted to. get on he could not recover; but lie added that they must .not find it was moving unless' they found that it was moving three or four miles an hour; that there was “ no middle 'ground,” that it was either standing -still, “ as the plaintiff and his witnesses say,” or moving three to fou-r miles an hour, “as the defendant’s .witnesses say.” How as the car had stopped'at the first crossing of a street that liad a car line on it, and the accident happened just after it passed over the opposite crossing, the jury might well have hesitated to find that .it had got going three or four miles an hour when- 'the plaintiff' tried to get on, while it would have been willing to find .that- it was moving very slowly, or one milq an hour, for instance, which would require them to render a verdict for the defendant. But the learned trial judge would not permit that finding; if they could not find that the car was moving -, three or four miles an hour he would not allow them to find it was moving at all. This was prejudicial error.

The judgment should be reversed. ' '

Jenks, Rich and-Miller, JJ., concurred ; Hooker, J., concurred in result.

judgment and order reversed and new trial- granted, costs to abide the event. *