West v. Manhattan Railway Co.

24 Jones & S. 590

• Court: The Superior Court of New York City
• Decided: June 20, 1888
• Status: Published

Opinion

Held (Sedgwick, Ch. J., writing),

as to the first point, “ that under the charge of the judge as made, the jury were not at liberty to give anything for the cost of medicine, etc.; that the matter of the request was unnecessarily introduced by the plaintiff and therefore he could not avail himself of an exception to a ruling on it; and further that the request was ambiguous in form and meaning, it being neither a request to charge that there could be no recovery for the cost of the medicine, nor a request that the jury could not allow for the using of medicine. In the latter aspect the jury could have found something for the plaintiff being obliged to take the medicines, as they were uncomfortable, nauseous, destructive of appetite and caused one to live in the atmosphere of a druggist’s shop; for which the jury could give compensation.”

As to the second point, “ that the charge was correct as to the credibility of an interested party and covered the substance of the request; and that the general exception to the charge as made did not raise any question as to the use of the words 1 as that of every other witness,’ the attention of the court being thereby particularly called to that phrase as being objectionable.”

As to the third point, “ that the words were admissible under the rule that allows exclamations. A strict grammatical construction should not be used. The jury might find the words were exclamatory in reality. There were as matter of fact no splinters in his leg. The words were not' received as evidence of there being splinters. The jury might find that pain forced out the words.”

Truax and Dugro, JJ., concurred.