38 A.D. 49 | N.Y. App. Div. | 1899
This action was brought to recover damages for personal injuries sustained through a collision between a. Second avenue horse car, on
The learned counsel for the respondent contends that this error of the court was cured by a subsequent instruction to the jury. The rule is that “ To obviate an erroneous instruction upon a material point, it must be withdrawn in such explicit terms as to preclude the inference that the jury might have been influenced by it.” (Chapman v. Erie Railway Co., 55 N. Y. 579.) The appellant presented to the court twenty requests to charge. Its 8th request was : “ No inference of negligence against the defendant Third Avenue Railroad Company must be drawn simply because of the occurrence of the accident.” This was refused and the appellant excepted. The 19th request is substantially a repetition: “ The ’ mere fact that there was a collision between the two cars does not arouse any presumption that the defendant Third Avenue Railroad Company was negligent.” This also was refused and the appellant excepted. The appellant’s 10th request to charge was : “ If either the conclusion of the negligence of the Third Avenue Railroad Company, or the absence.of negligence on its part may, with equal fairness be drawn, then no verdict can be rendered against the Third Avenue Railroad. The mere fact that the cable car struck the blow does not prove negligence on the part of the defendant, the Third Avenue Railroad Company.” The court charged this request. It is claimed that the latter part of this request, “ The mere fact that the cable car struck the blow does not prove negligence on the part, of the defendant, the Third Avenue Railroad Company,” not only covers the two other requests alluded to, but operates as a retraction of the previous charge by the court that the occurrence of the accident called upon each defendant for explanation. We do not so. construe it, and it is very plain that the trial court did not regard this instruction as inconsistent with its previous charge, or otherwise
The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.
All concurred.
Judgment and order reversed and a new trial granted, costs to abide the event.