Majority
p. 526Garret Fitzgerald, Adm’r, App’lt, v. Charles Fachs, Resp’t. (New York Superior Court, General Term, Filed January 6, 1890.)
Headnote
Trim—Charge.It is not error for the court in his charge to state the impression made upon his mind by the evidence, so long as he leaves it to the jury to determine the question for themselves.
Appeal from judgment entered upon verdict dismissing the complaint, and from order denying motion for a new trial.
Action to recover for the death of plaintiff’s intestate, alleged to have been caused by defendant’s negligence.
Defendant was excavating a sewer at Eleventh avenue and Forty-third street near the tracks of the Hudson Eiver railroad. Intestate was stealing a ride on a car of said railroad, and at that
p. 527Exception being taken to this portion of the charge, the judge said: “You may believe Mr. Cunningham and also disbelieve every other witness in this case if you wish to.” * * * “ As I remember the testimony, almost every witness, if not every witness, except Mr. Cunningham, testified that it was the plank that ran parallel with the car that did the injury.” * * * “ I do not say this is the fact. You may believe Mr. Cunningham and disbelieve every other witness that has been called, or you may do the other thing, you may believe the other witnesses and disbelieve Mr. Cunningham” Appellant contends that this was error, as the court substantially charged that the jury were at liberty to disregard the testimony of Cunningham, who was an eye witness, not interested and was not impeached or discredited ; that his credibility was for the jury. Respondent claims that the judge could state the impressions made on his mind by the testimony; leaving it, to the jury to come to their own conclusions.
point jumped or was thrown off and run over by the car and killed.
Plaintiff’s testimony tended to show that a timber projecting sideways from defendant’s apparatus took off the step on which intestate was standing; while defendant’s testimony tended to prove that a larger boy jumped off and tilted a plank which was laying alongside and which took off the step; that deceased jumped off immediately after the other boy, and was pushed under the car by him.
In the charge the court remarked: “ The first witness called by the plaintiff said that the plank was. running at right angles to the railroad track. * * * I think it may be taken for granted that there was no such plank lying in that position at all, for all the other witnesses stated that the planks were what were called sheathing planks, that is, stood perpendicularly in the cut, except two planks which were lying parallel to the railroad track; that is, north and south across the cut I think it may be taken for granted, because the plaintiff and other witnesses so testified, and so did the witnesses for the defendant.”
George C. Coffin, for app’lt; Thomas S. Grady and Theodore Connolly, for resp’t.
Judgment and order affirmed, with costs.
Sedgwick, Ch. J., Freedman and Ingraham, JJ., concur.