Haggerty v. New York City Ry. Co.

90 N.Y.S. 336

Opinion

PER CURIAM.

The court below gave no instructions whatsoever to the jury upon the question of either negligence or contributory negligence, but made the credibility of the witnesses the sole test of liability. The charge simply directed them, if they believed the version of the occurrence given by the plaintiff, to find in his favor, but, if they disbelieved this, and believed the evidence of the defendant’s witnesses, that then their verdict should be for the defendant. Nothing was said as to the essential facts to be established conceding the truth of the testimony, before the defendant could be held liable. For these and the further reason that the court charged that defendant’s conductor was not corroborated, this recovery cannot be permitted to stand. There was evidence tending to corroborate some of the details of the conductor’s story, and whether there was corroboration or not was a subject which should have been submitted to the jury

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