12 A.D. 508 | N.Y. App. Div. | 1896
The action was brought to recover damages for the negligent killing. of the wife of the plaintiff. It was claimed on the part of the plaintiff that she was thrown from one of the cars of the defendant by a sudden jerk of the car, which took place just as she had arisen to get out. There was a serious conflict of evidence as to the man- . ner in which the accident occurred. One witness, who was sworn by the plaintiff; gave evidence tending to show negligence on the part of the defendant and the lack of contributory negligence on the part of the deceased. His testimony, if true, was most important, but upon cross-examination he was confronted with declarations previously made by him, which tended to seriously contradict it.
Before the charge to the jury the defendant’s counsol submitted several requests to charge, which presented all the law claimed, by him to bear upon the case in his favor, so far as he desired to present it at that time. After passing upon these requests, the court proceeded to charge the jury. In the course of the charge the court commented, somewhat upon the particular testimony which been given by the witness referred to. At the close of the charge the following colloquy occurred: “ Defendant’s counsel: I will ask your honor to charge * * ” and if any witness has knowingly testified falsely-. The Court: If there is any Other request on the general law of the case it ought to have been handed up. I do not like, after you exhaust your written requests, to have others asked orally. I do not entertain it.’ Defendant excepts. The jury then retired.”
After the jury had retired the defendant’s counsel procured the
In this case it appears that there was a very closely disputed question of fact. It was the duty of the jury to examine carefully the evidence of each witness who testified upon that point, and it was the right of the defendant to have full instruction given to the jury as to the rules which have been laid down to control the consideration of the evidence. Especially is that the case when, as in this case, a witness had testified differently at two different times. The request was a proper one, and the charge should have been given. The refusal to do so was an error which was fatal to the verdict.
In thus holding we do not wish to be understood that the right of counsel to present requests to charge is unlimited, or that it may not be controlled by the court. While we recognize the right to present such requests, arid the duty of the court to charge them, so far as they are material to the case, we also recognize that there is sometimes a great abuse of the privilege of counsel respecting the submission of requests to charge. As is said by Judge Woods in The L. & N. Railroad Co. v. Kelly (24 U. S. App. 103, 107), <£ There must be a point — it may be difficult to locate — where in sheer self-defense, as well as out of regard for the due administration of justice, a court may refuse to entertain such" requests, merely because of their excessive number or quantity.” When the charge is adequate and covers every subject as to which it is proper to instruct the. jury, further requests are.useless and generally confusing. They then become a mere intellectual duel between the court and counsel, which should not be permitted. (Garbaczewski v. Third Ave. R. R. Co., 5 App. Div. 186, 189.) It must be left very largely to the discretion of the trial court to decide when that point shall have been reached, and an appellate court will be loth to interfere with that discretion, unless it is clear that it has. been improperly exercised. Having come to the conclusion that this error is a fatal one, we have not thought it necessary to discuss the case further. Many other exceptions have been taken, but the questions presented by them will not be necessarily presented upon a new trial, and, therefore, it is useless to pass upon them upon this appeal.
Van Brunt, P. <T., Barrett, O’Brien and Ingraham, JJ., concurred.
Judgment and order reversed and new trial granted, with costs to the appellant to abide the event.