The plaintiff recovered a verdict for $3,000 damages for personal injuries caused by the negligence of the defendant, and the defendant appeals from the judgment and from an order denying a motion, for a new trial. The plaintiff, a passenger on a car of the defendant,, alleged that while she was alighting from a car the car was started,, whereby she was cast down upon the street and injured. Her testimony and that of her husband tended to sustain her allegation,, while the testimony pf the defendant tended to show that she stepped from the car while it was in slow motion. The issue presented a question for the jury, and there is not sufficient preponderance of' testimony for the defendant to justify a reversal of the judgment.
' The appellant contends that there are errors in certaih rulings- and in a refusal to charge the jury.
I. Among other injuries specified, the plaintiff complained that her hearing was injured by the accident. She was asked : “ How was-your hearing before this accident on the 5th of July, 1898 ? A. Good. The Court: That may be stricken out.” Emily Bogart, called by the; plaintiff, testified that she had known the plaintiff for twenty years that her-hearing was perfectly good before the accident, and that she: had talked with her many times. “ Q. Have you noticed any difference in her hearing since the accident? A. I have. Objected to-unless connected with this occurrence. Q. Right after this injury what did you notice as to her hearing ? Objected to. The Court: I will permit the witness to state any difference that she has noticed in the hearing after the accident. Defendant excepts. The Court l That is, any observations that she has made. Mr. Day: Hnless it is-based on something to show a connection with this accident. Defendant excepts.” Thereupon witness stated that the .plaintiff could not hear as well, and that she had noticed that plaintiff turned her other-ear towards her to hear moré distinctly, which she had not done, before the accident. No further evidence from any source was. offered upon this subject, save that the plaintiff’s husband testified,, “ my wife’s hearing was good before this accident.” The learned, counsel for the appellant argues that it cannot be said that the jury did not consider this alleged impairment of hearing as an element of damage, and yet it was not properly proven in that, it was shown. ■ only that this impairment supervened after the accident without
II. Defendant’s counsel asked its witness Bradley on redirect examination: “ What did Mr. Pearsall (the plaintiff’s attorney and counsel) say to you about forgetting this, asking you to forget about having seen this accident ? Objected to as incompetent; objection sustained; exception taken.” The question is addressed to defendant’s own witness. It does not clearly appear that any conversation between Mr. Pearsall and the witness had been called forth on cross-examination. The learned counsel for the appellant concedes that “ the evidence sought to be introduced did not directly impeach any witness produced upon the trial,” but claims that the evidence is competent against the plaintiff for the reason- that it
III. At the close of the charge the learned counsel for the defendant asked the court “to charge the jury that if they are in doubt after hearing all this testimony they must give their verdict for the defendant.” The court declined, and defendant excepted. Such request, if charged, might have been construed by the jury as a statement by the court that the plaintiff could not prevail if there was any doubt in the minds of the jury, or that she must prove her case to the satisfaction of the jury beyond a doubt, and not merely by a clear preponderance of the credible evidence. The learned counsel for the appellant quotes this excerpt from the opinion in Hale v. Smith (78 N. Y. 480): “ If the evidence left the jury in doubt whether the in jury was occasioned by the fault of defendant’s intestate alone, or was caused or contributed to by the viciousness of the horse, the defendant was entitled to the benefit of that doubt, and the plaintiff had failed to make out his case.” But' the learned counsel apparently omitted to notice that Rapadlo, J., in the very next sentence said : “ This is only stating in another form the proposition that the plaintiff was bound to prove the controverted facts by a preponderance of testimony.” Dünwell, J., the learned trial justice, had charged the jury that the burden was upon the plaintiff to establish the essential features of her case by a fair preponderance of the credible testimony in the case, and he had further charged that if, upon the conflict of testimony, the plaintiff had not proved her case by a preponderance of testimony, but the testimony stood equal, there could be no recovery by the plaintiff, because it was incumbent upon her to prove her case by a fair preponderance. If the request under review was only stating in another form that the plaintiff was bound to prove the controverted facts by a preponderance of .credible testimony, then it was not error for the court to refuse reiteration. (Rommeney v. City of New York, 49 App. Div. 64.) If it required a higher standard from the plaintiff then it is -counter to the law. (Farmers' Loan & Trust Co. v. Siefke, 144 N. Y. 354; Whitlatch v. Fidelity & Casualty Co., 149 id. 45; Long
The judgment and order must he affirmed, with costs.
Judgment.and order unanimously affirmed, with costs.