Persico v. Metropolitan Street Railway Co.

87 N.Y.S. 233

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 11, 1904
• Status: Published

Opinion

FREEDMAN, P. J.

A reversal is sought upon the allegation that the trial judge erred in charging the jury that if they believe that plaintiff’s wagon was not struck in the rear, but was struck in the side towards the front of the wagon, they could not under the evidence in the case find a verdict for the plaintiff. This proposition must be considered in connection with the entire charge, and when thus considered it will be found to be free from error. There were two irreconcilable theories of the manner in which the accident occurred, presented to the jury for consideration. Plaintiff’s testimony showed, and his contention was, as charged by the trial judge, that the rear wheels of his wagon were struck by defendant’s car. Defendant’s contention was that the plaintiff drove upon the trade on an angle when the car was only 15 or 18 feet away, and that the wagon was struck in the side, and there was evidence in support of that contention which, if credited by the jury, entitled the defendant to a verdict. Under'all the circumstances, the part of the charge complained of amounted simply to an instruction that if, upon the whole case, the jury should accept defendant’s version, the plaintiff could not have a verdict, and, as no request for a modification or greater accuracy of statement was made, no-reversible error can be predicated upon the exception taken to the language used.

The judgment and order should be affirmed, with costs. All concur.