Majority
p. 775MAHON v. METROPOLITAN ST. RY. CO. (Supreme Court, Appellate Term. February 25, 1901.) Argued before ANDREWS, P. J., and O’GORMAN and BLANCHARD, JJ.
Headnote
1. Instructions—Special Requests—Refusal.Special requests for instructions covered by the charge given, which correctly stated the law of the case, were properly refused.
2. Same—Exceptions—Availability.
Where special requests for instructions are refused on the mistaken supposition of the court- that they were included in the charge given, and one of them, which should have been given, appears not to have been included, an exception therefor is unavailing; the counsel having failed to point out the particular omission to the court.
8. Same—Review.
Where the charge as a whole gave the true rule by which the jury were to be governed, the judgment should be affirmed, notwithstanding the court’s failure to charge a correct proposition requested.
Appeal from municipal court, borough of Manhattan, Tenth district.
Action by Mary A. Mahon, an infant, by guardian, against the Metropolitan Street-Railway Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
Henry A. Robinson, for appellant.
Charles Caldwell, for respondent.
The only errors assigned grow out of the refusal of the trial justice to charge certain requests made by the defendant. The court correctly instructed the jury in the colloquial charge on the law of the case. Three additional requests, touching the burden of proof and the absence of contributory negligence, were charged at defendant’s request. Five other requests were thereupon submitted to the court, and, in refusing to charge them as requested, the justice
p. 776
observed, “I think my charge covers what you ask me to charge.” Four of these five requests were properly refused. One, being the familiar rule that the jury may disregard the testimony of an interested witness, should have been charged, as that proposition had not been alluded to; but, as said in Gardner v. Friederich, 25 App. Div. 533 , 49 N. Y. Supp. 1087 :
“If the court had failed to charge specifically as to the proposition requested, counsel should have pointed out the omission and corrected the court. The appellants contend that this matter was not even alluded to in the charge. If that be true, then it was the counsel’s duty to call the court’s attention to the omission.’’
The exception is therefore unavailing. The charge as a whole gave the true rule by which the jury were to be governed, and the judgment should be affirmed.
Judgment affirmed, with costs. All concur.