Schaefer v. Metropolitan Street Railway Co. — 69 N.Y.S. 980

Majority

p. 980

(34 Misc. Rep. 554.)

SCHAEFER v. METROPOLITAN ST. RY. CO.

(Supreme Court, Appellate Term.

April 16, 1901.)

Headnote

Negligence—Preponderance op Evidence—Instructions.

In a suit to recover tor injuries, the court’s refusal of an instruction that, if the evidence was equally balanced on either the question of defendant’s negligence or plaintiff’s freedom from negligence, they must find for defendant, with the statement, “I will let the jury say,” implying that they were to determine the consequences attending evenly balanced testimony, is reversible error.

Appeal from municipal court, borough of Manhattan, Tenth district.

Action by Annie Schaefer against the Metropolitan Street-Rail•way Company. From a judgment in favor of plaintiff, defendant appeals,

Reversed.

Argued before BISCHOFF, P. J., and CLARKE and LEVEH-TRITT, JJ.

G. Glenn Worden, for appellant.

Matthew F. Ennis, for respondent.

The plaintiff recovered a judgment for $250 in .an action for personal injuries. The justice in charging the jury,

p. 981

after staung the versions of the respective parties, limited his-instructions on the law to the statement that it was incumbent on the plaintiff to satisfy the jury, by a preponderance of evidence, that her injuries were occasioned solely by the negligence of the defendant, without any negligence on her part. Thereupon this colloquy ensued:

“Defendant’s Attorney: I ask your honor to charge, if upon the whole ease-the evidence is equally balanced, either upon the question of the defendant's negligence or the plaintiff’s freedom from contributory negligence, they must find a verdict in favor of the defendant. The Court: I will let the jury say. Defendant’s Attorney: Will your honor charge that as requested? The-Court: I decline. Defendant’s Attorney: To your honor’s refusal to charge as requested the defendant excepts.”

.There is nothing in the very brief charge that can be deemed to-have covered this request. It was sound in law, and the defendant was entitled to have the jury so instructed. Brockman v. Railway Co., 32 Misc. Rep. 728 , 66 N. Y. Supp. 339 ; Newcomb v. Same (Sup.) 68 N. Y. Supp. 780 . The unqualified refusal, as well as the misleading inference involved in the statement, “I will let the jury say,”—implying that they were to determine the consequence attending evenly balanced testimony,—was certainly prejudicial to-' the defendant, and constitutes reversible error.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.