Schaefer v. Metropolitan Street Railway Co.

Appellate Terms of the Supreme Court of New York

Schaefer v. Metropolitan Street Railway Co.

34 Misc. 554, 69 N.Y.S. 980

CourtAppellate Terms of the Supreme Court of New York

DecidedApril 15, 1901

StatusPublished

This text of 34 Misc. 554 (Schaefer v. Metropolitan Street Railway Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schaefer v. Metropolitan Street Railway Co., 34 Misc. 554, 69 N.Y.S. 980 (N.Y. Ct. App. 1901).

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Opinion

Per Curiam.

The plaintiff recovered a judgment for $250 in an action for personal injuries. The justice in charging the jury, after stating the versions of the respective parties, limited his instructions on the law to the statement that it was incumbent on the plaintiff to satisfy the jury by a preponderance of evidence that her injuries were occasioned solely by the negligence of the defendant, without any negligence on her part.

Thereupon this colloquy ensued: Defendant’s attorney — “I ask your Honor to charge, if upon the whole case the evidence is equally balanced, either upon the question of the defendant’s negligence or the plaintiff’s freedom from contributory negligence, they must find a verdict in favor of the defendant.” The Court — “I will let the jury say.” Defendant’s attorney — “ Will your Honor charge that as requested.” The Court — “I decline.” Defendant’s attorney — “To your Honor’s refusal to charge as requested, the defendant excepts.”

There is nothing in the very brief charge that can be deemed to have covered this request; it was sound in law and the defendant was entitled to have the jury so instructed. Brockman v. Metropolitan St. R. Co., 32 Misc. Rep. 728; Newcomb v. Same, 34 Misc. Rep. 203, 68 N. Y. Supp. 780. The unqualified refusal, as well as the misleading inference involved in the statement, “ I will let the jury say ”— implying that they were to determine the consequence attending evenly-balanced testimony — was certainly prejudicial to the defendant and constitutes reversible error.

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

Present — Bischoff, P. J., Leventbitt and Clabke, JJ.

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

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Per Curiam.

The plaintiff recovered a judgment for $250 in an action for personal injuries. The justice in charging the jury, after stating the versions of the respective parties, limited his instructions on the law to the statement that it was incumbent on the plaintiff to satisfy the jury by a preponderance of evidence that her injuries were occasioned solely by the negligence of the defendant, without any negligence on her part.

Thereupon this colloquy ensued: Defendant’s attorney — “I ask your Honor to charge, if upon the whole case the evidence is equally balanced, either upon the question of the defendant’s negligence or the plaintiff’s freedom from contributory negligence, they must find a verdict in favor of the defendant.” The Court — “I will let the jury say.” Defendant’s attorney — “ Will your Honor charge that as requested.” The Court — “I decline.” Defendant’s attorney — “To your Honor’s refusal to charge as requested, the defendant excepts.”

There is nothing in the very brief charge that can be deemed to have covered this request; it was sound in law and the defendant was entitled to have the jury so instructed. Brockman v. Metropolitan St. R. Co., 32 Misc. Rep. 728; Newcomb v. Same, 34 Misc. Rep. 203, 68 N. Y. Supp. 780. The unqualified refusal, as well as the misleading inference involved in the statement, “ I will let the jury say ”— implying that they were to determine the consequence attending evenly-balanced testimony — was certainly prejudicial to the defendant and constitutes reversible error.

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

Present — Bischoff, P. J., Leventbitt and Clabke, JJ.

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

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34 Misc. 554, 69 N.Y.S. 980, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schaefer-v-metropolitan-street-railway-co-nyappterm-1901.

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