Cook v. New York Central Railroad

5 Lans. 401 | N.Y. Sup. Ct. | 1871

By the Court

Johnson, J.

There was no error in the charge of the judge. That part of the charge, in respect to ringing the bell and sounding the whistle, and the conduct of the person injured in reference to such signals, is in exact accordance with the rule laid down in Havens v. The Erie Railway Company (41 N. Y., 296).

In respect to that part of the charge on the subject of the city ordinance regulating the speed of trains, the first branch of it, or proposition, is certainly correct, and the exception is general “ to each and every proposition.” The second proposition is not erroneous, on the face of it. It is a mere genera, statement that the ordinance was important only as a rule for the government of the conduct of the parties. This, of course, includes both parties, as it stands, and is scarcely subject to verbal criticism. If the defendant’s counsel desired to raise any point upon it, he should have called the attention of the judge more particularly to the subject, and specified what he regarded as erroneous in the proposition, and how he desired to have the rule stated.

The ruling admitting evidence on the subject of the agreement between the plaintiff and her attorney as to the measure of his compensation, and the terms on which he was to commence and prosecute the action for her, as such attorney, was undoubtedly erroneous, and the exception is well taken, unless we can see that the plaintiff could not have been prejudiced by the evidence. That the evidence was wholly irrelevant and immaterial, is quite clear. There was no issue in respect to the proper parties to the action; and there was no other issue in the case to which the evidence could be made applicable. It was entirely foreign to the question, whether a cause of action existed in the plaintiff’s favor against the defendant. The evidence being irrelevant and immaterial, and admitted against the plaintiff’s objection, upon an exception duly taken, a new trial is to be granted, unless it can be clearly seen that the plaintiff could not possibly have been prejudiced by the ruling and the improper evidence. (Farmers’ and Manufacturers’ Bunk v. Whinfield, 24 Wend., 419.) Cowes, J., in that case says that if the court can see that the evidence objected to must necessarily have tended in favor of the party excepting, “ if it made for him in its own nature, or could not possibly prejudice his case, that might be an answer; but so long as the chance is equal, that it may have had some effect one way or the other, the party is entitled to the benefit of the principle that irrelevant testimony should be shut out from the jury.” Here the evidence was admitted as relevant, and as having something to do with the matter in issue which the jury were to determine. It is true, thjury found that the plaintiff had no cause of action, and probably upon the ground that the injury arose from the carelessness and negligence of the party injured. But every one at all familiar with trials before juries knows how such a fact, as the one given in evidence here, would be likely to operate on the minds of a jury, and create a prejudice and bias against both the party and the attorney; and the court cannot decently pretend to be ignorant on that subject.

The chances are that it had made more than “ a feather’s weight ” in the determination of the issues upon the merits. But so long as it had, or may have had, no more than that, as was said in the case before cited, the party insisting upon hia exception u is entitled to his neat point on error.”

The testimony of the witness, John Brennan, before the coroner’s inquest, was properly excluded. The inquest was no action or judicial proceeding between these parties in any sense.

But for the error in the other ruling, a new trial must be granted, with costs to abide the event.

Judgment accordingly.