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Weintraub v. Guilfoyle

89 A.D. 328 Court N.Y. App. Div. English

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p. 328
Morris Weintraub, as Administrator, etc., of Libby Weintraub, Deceased, Appellant, v. John Guilfoyle, Respondent.

Headnote

Negligence— testimony of a father that he warned a child not to go into the street, if believed, warrants a finding to that effect.
In an action brought to recover damages for the death of the plaintiff's daughter, an infant six years of age, who was run over and killed in a public street through the alleged negligence of the defendant, the plaintiff testified that he had frequently warned the child not to go into the street, and his testimony was the only evidence given on that subject.
The trial justice charged the jury that it was incumbent upon the plaintiff, in order to recover, to prove that he had given such warnings, and that they might take into consideration the fact that the plaintiff was an interested witness in determining what credence should be given to his statements.
He was asked by the plaintiff’s counsel to charge the jury, “That the evidence of the father in this case would, if credited by the jury, warrant the jury in finding that he did warn the child against the dangers of the highway."
Held, that the refusal of the trial justice to charge as requested was an error requiring the reversal of a judgment entered upon a verdict in favor of the defendant.
Appeal by the plaintiff, Morris Weintraub, as administrator, etc., of Libby Weintraub, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 10th day of March, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of March, 19,03, denying the plaintiff’s motion for a new trial made upon the minutes.
Alexander Rosenthal, for the appellant.-
Luke L. Stapleton [Ernest P. Beelma/n with him on the brief], for the respondent.

This action is brought to recover for the death of the plaintiff’s decedent, his child of the age of six years, who was run over and killed under circumstances in which it is soughtto charge the defendant upon the ground of negligence. The plaintiff testified that he had frequently warned the child against going into the street where the accident occurred. His evidence was the only evidence given on that subject. The learned trial justice charged the jury that it was incumbent upon the plaintiff in order to recover, under certain circumstances, to prove that he had given such warnings, and he also properly charged the jury that they could take into consideration the fact that the plaintiff was an interested witness in determining what credence should be given to his statements. He was asked by the plaintiff’s counsel to charge the jury, “ That the evidence of the father in this case would, if credited by the jury, warrant the jury in finding that he did warn the child against the dangers of the highway.” This request was refused, and we deem the refusal reversible error. The attention of the court was called at the time to the fact that the plaintiff had given the testimony referred to, so that the refusal was equivalent to an instruction that the fact of the warning could not be established solely by the evidence of the plaintiff, even though that evidence were believed. The only case cited by the learned counsel for the respondent in support of this ruling is that of Dolan v. Delaware & Hudson Canal Co. ( 71 N. Y. 285 ). In that case, however," the request was in effect that if the jury believed the testimony of the witness therein referred to it would be obliged, as matter of law, to decide in favor of the plaintiff. The difference between the two cases is obvious. Here all that was asked was that the jury should be instructed that if they believed the testimony of the plaintiff on the subject of warnings, they would be at liberty to conclude that the warnings had been given notwithstanding the testimony was that of an interested person. The plaintiff was clearly entitled to have this instruction given to the jury, and because of the error in refusing it a new trial is necessary.

Present — Goodrich, P. J., Woodward, Hirschberg, Jenks and Hooker, JJ.

Judgment and order reversed and new trial granted, costs to abide the event.

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