Forty-Second St., M. & St. N. Ave. Ry. Co. v. Hannon

Second Circuit

Forty-Second St., M. & St. N. Ave. Ry. Co. v. Hannon

85 F. 852, 29 C.C.A. 437, 1898 U.S. App. LEXIS 2214

CourtCourt of Appeals for the Second Circuit

DecidedMarch 10, 1898

DocketNo. 100

StatusPublished

This text of 85 F. 852 (Forty-Second St., M. & St. N. Ave. Ry. Co. v. Hannon) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Forty-Second St., M. & St. N. Ave. Ry. Co. v. Hannon, 85 F. 852, 29 C.C.A. 437, 1898 U.S. App. LEXIS 2214 (2d Cir. 1898).

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Opinion

PER CURIAM.

We find no error calling for a reversal of the judgment in this case. The amendment to the complaint introducing an additional element of damages for money expended was foreshadowed in the bill of particulars, and its allowance was within the discretion of the trial judge. The charge was concrete, rather than general. It instructed the jury upon the specific facts in proof, and correctly informed them as to the propositions of law arising upon those facts. That being so, the court was under no obligation to charge in,general terms, as requested by defendant. As to the request to charge specifically that the jury “are not bound to believe the testimony of the plaintiff, even though it were not contradicted or impeached,” it is sufficient to say that the situation presented by the evidence in this cause did not call for such explicit instructions, although, of course, there would have been no error in giving them. They are usually given where the only testimony in support of some material fact is that of the interested witness, and there is no evidence controverting it; and there is some risk of the jury assuming that they must find according to the uncontradicted evidence. In the case at bar, however,- the plaintiff was expressly contradicted by the conductor, himself an interested witness; and the court charged that plaintiff was an interested witness, that the circumstance that she was interested did not prevent their believing what she said if they did believe it, but that they were to consider her interests, and “weigh her testimony in view of that fact, and in view of all the other evidence in the case, just as you would the testimony of any witness in the case, only1 as she may have a greater interest.” This was sufficient. [853]*853upon the record in this case. There was no material error in the admission or rejection of evidence. The judgment of the circuit eemrt is affirmed.

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PER CURIAM.

We find no error calling for a reversal of the judgment in this case. The amendment to the complaint introducing an additional element of damages for money expended was foreshadowed in the bill of particulars, and its allowance was within the discretion of the trial judge. The charge was concrete, rather than general. It instructed the jury upon the specific facts in proof, and correctly informed them as to the propositions of law arising upon those facts. That being so, the court was under no obligation to charge in,general terms, as requested by defendant. As to the request to charge specifically that the jury “are not bound to believe the testimony of the plaintiff, even though it were not contradicted or impeached,” it is sufficient to say that the situation presented by the evidence in this cause did not call for such explicit instructions, although, of course, there would have been no error in giving them. They are usually given where the only testimony in support of some material fact is that of the interested witness, and there is no evidence controverting it; and there is some risk of the jury assuming that they must find according to the uncontradicted evidence. In the case at bar, however,- the plaintiff was expressly contradicted by the conductor, himself an interested witness; and the court charged that plaintiff was an interested witness, that the circumstance that she was interested did not prevent their believing what she said if they did believe it, but that they were to consider her interests, and “weigh her testimony in view of that fact, and in view of all the other evidence in the case, just as you would the testimony of any witness in the case, only1 as she may have a greater interest.” This was sufficient. [853]*853upon the record in this case. There was no material error in the admission or rejection of evidence. The judgment of the circuit eemrt is affirmed.

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85 F. 852, 29 C.C.A. 437, 1898 U.S. App. LEXIS 2214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/forty-second-st-m-st-n-ave-ry-co-v-hannon-ca2-1898.