91 N.Y.S. 59 | N.Y. App. Div. | 1904
This is an action to recover damages for a personal injury, and the only question presented upon this appeal is in reference to a refusal of the court to charge certain requests made by the defendant. The plaintiff was a married woman, living apart from her husband and gaining her own livelihood as a trained nurse. She was injured by one of the defendant’s cars, on which she was a passenger, starting before she had time to alight after the car had been stopped for that purpose, and the injury appears to have been of a permanent nature. While the plaintiff was confined at the hospital the defendant’s claim adjuster entered into negotiations with plaintiff’s husband, between whom and the plaintiff there appears to have been a passive friendship, which resulted in the husband taking the claim agent to the hospital, where the plaintiff, for an alleged consideration of seventy-five dollars, released her claim against the defendant. The plaintiff concedes that she signed the paper, but she testified that she was never paid seventy-five dollars or any other sum for such release, and that she has no recollection of the contents of the paper. In explanation she testified that she had taken a dose of morphine on the day in question and that all of her recollections of that time are obscured and hazy.
At the close of the- charge to the jury defendant’s counsel made the following request: “ The plaintiff did not call Dr. Baldwin. I ask your Honor to charge the jury that, if the plaintiff has failed to call a witness who could throw any light on the subject, the jury may infer from their not calling him that he would not help their side.”
Obviously this is not the law; a plaintiff is not obliged to call
This request the learned court refused to charge, and properly, we believe. The plaintiff had testified that she had taken the morphine; it appeared in evidence that the morphine had been furnished by her husband, a licensed physician; and the burden being upon the defendant to show that its release was good, why should the plaintiff be called upon to place Dr. Baldwin upon the stand, or run the risk of having the jury charged that they might infer that his testimony would not be of advantage to her ? The defendant had the same right to call Dr. Baldwin that the plaintiff had; there was nothing to indicate that he was less friendly to the defendant than to the plaintiff; and if the latter was content to rest her case upon her own testimony in reference to the release and the circumstances under which it was procured, no rights of the defendant were prejudiced, and it had no right to have the jury charged as requested. It was for the defendant to show that it had a valid release, and undoubtedly, if it had had any reason to believe that Dr. Baldwin would have discredited the testimony of the plaintiff in any degree, it would not have failed to call him. Not caring to take this responsibility itself, it would be strange if it could get all of the effect of discrediting evidence by the mere failure of the plaintiff to call a witness upon a collateral issue, and one which was already supported by evidence of equal value. This is not a case where a party fails
The judgment and order appealed from should be affirmed, with costs.
Judgment and order unanimously affirmed, with costs.