Gabel v. Brooklyn, Queens County & Suburban Railroad

112 N.Y.S. 1047

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 24, 1908
• Status: Published

Opinions

SEABURY, J.

The charge which the counsel for the defendant requested the court to make was incorrect in form. The defendant’s witnesses testified to facts tending to establish that the agents of the defendant were free from negligence, and that the plaintiff was guilty of contributory negligence. The request sought to have the court submit to the jury only the question of the credibility of the defendant’s witnesses, instead of the question as to the negligence of the plaintiff and defendant. The court was correct in refusing to make the charge in the form in which it was requested. Kellegher v. 42d St., etc., Ry. Co., 171 N. Y. 309, 63 N. E. 1096. In Dolan v. D. H. C. Co., 71 N. Y. 285, 290, a request similar in its nature was before the court and Church, C. J., said:

“It is not strictly proper to refer to the testimony of a witness, and ask the court to charge that, if the jury believe that witness, they must find in a certain way, or that a certain legal conclusion follows, because it prevents the jury from construing the evidence and determining what facts it does establish.’’

The judgment appealed from should be affirmed, with costs.

Judgment affirmed, with costs.