36 A.D. 309 | N.Y. App. Div. | 1899
The gravamen of the plaintiff’s complaint in this action is. that while he was trying to board one of the defendant’s cars which had stopped to receive him as' a passenger, the car was suddenly .started so as to throw him down and inflict injuries which resulted in the loss of several fingers. The complaint expressly and distinctly alleged that the car stopped. Upon the trial the plaintiff testified positively that it did stop, and that he walked up to get on board'and “ took hold of the car after the car had stopped.”
In behalf of the defendant the evidence tended to show that the car did not stop at all until after the accident, but that the plaintiff was- hurt in consequence of trying to board it while it was moving. Indeed, one of the plaintiff’s own witnesses swore that the car did not come to a full stop, but that when it slackened up the plaintiff made a grab for the car, whereupon “ the car made a kind of a jerk, and threw him off and dragged him,” until he hit an elevated post and his left hand went under the car. The counsel for the defendant asked the court to charge the jury that if they found the car did not. stop, but that while moving the plaintiff attempted to board the same and was injured while attempting to do so, their verdict must be for the defendant. The learned trial judge refused to charge this request save as he had already expressed himself, and the counsel for the defendant excepted. There is nothing in the charge itself which covers -the point presented by this request; and the ruling left the jury at liberty to find a verdict in favor of the plaintiff even though they were satisfied that the car did not stop at all.
On the authority of the decision in that case (as to the correctness of which I do not mean to intimate any doubt) I am in favor of a reversal of this judgment.
All concurred, except Goodrich, P. J., who concurred in result.
I am in favor of reversing this judgment, and am of opinion that under' the facts of this .case it was error to refuse to charge that if the plaintiff attempted to board the car while it was moving, and in such attempt was injured, the verdict should be "for the defendant. But I reach this conclusion only because the testimony in the case presented two irreconcilable theories of the manner in which the accident was occasioned, and a finding that the car was moving when the plaintiff attempted to get on was fatal to the plaintiff’s theory. But it must not "be understood that every inaccuracy or mistake made in the testimony of a witness as to the manner in which an occurrence has transpired, is fatal to the party’s claim. When the credibility of a witness is for the jury to pass upon, the jury is not limited to rejecting or accepting his testimony in whole; they may accept part and reject part. We can well suppose a case in which the jury might find that the plaintiff was in error, or even untruthful, in a statement that the car was at rest when he started to board it or to alight from it, and yet the negligence of the company and
All concurred, except Goodrich, P. -I., who concurred in result.
Judgment and order reversed and new trial granted, costs to abide the event.