Hyperlawhypertext legal database Duygan v. Third Avenue Railroad 26 N.Y.S. 79

← Cases

Duygan v. Third Avenue Railroad

26 N.Y.S. 79 Court N.Y. City Ct. Decision date 1893-11-27 English

Delivered by NEWBURGER, J.

Contents

Majority

p. 79
(6 Misc. Rep. 66.)
DUYGAN v. THIRD AVE. R. CO.
(City Court of New York, General Term.
November 27, 1893.)

Headnote

Credibility of Witness—Question for Jury.
An instruction that the jury “have a right to believe or disbelieve the plaintiff entirely, unless he is corroborated,” and that “if he is corroborated” they “have no right to disbelieve him,” is errbneous, as the credibility of a witness is for the jury.
Appeal from trial term.
Action by John Duygan against the Third Avenue Railroad Company for personal injuries. From a judgment for plaintiff, defendant appeals.
Reversed.
Argued before VAN WYCK, McCARTHY, and NEWBURGER, JJ.
Hoadly, Lauterbach & Johnson, for appellant.
Louis J. Grant, for respondent.

The plaintiff, on the night of April 18, 1888, while in the employ of defendant, and while engaged in his duties, tripped on a rail, and broke his wrist, which injury plaintiff claimed

p. 80
was caused by defendant’s negligence. The defendant denied any negligence on its part, and claimed that plaintiff’s injuries were caused by his own negligence. The case was submitted to the jury, and resulted in a verdict for the plaintiff in the sum of $500. From the judgment entered thereon, and an order denying a motion for a new trial, this appeal is taken.

In his charge to the jury the learned trial justice said: “You have a right to believe or disbelieve the plaintiff entirely, unless he is corroborated. If he is corroborated, you have no right to disbelieve him,”—to which portion of the charge an exception was duly taken. The credibility of a witness is a question for the jury. Honegger v. Wettstein, 94 N. Y. 252 ; Bank v. Diefendorf, 123 N. Y. 200 , 25 N. E. 402 . And therefore the charge of the judge took from the jury the right to determine as to whether his conduct was such as to bring him within the rule that the jury were at liberty to accept or reject the testimony of an interested witness. Without examining any of the other questions submitted by appellant’s counsel, we think the judgment, for the reason above stated, should be reversed, and a new trial granted, with costs to abide the event. All concur.

Cases cited