42 N.Y.S. 694 | 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 manner 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 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 counsel 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 proceéded to charge the jury. In the course of the charge, the court commented somewhat upon the particular testimony which had 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 ñp. I do not like, after you exhaust your written requests, to have others asked orally. I do not entertain it. (The defendant excepts. The jury then retire.)”
After the jury had retired, the defendant’s counsel procured the request which he had undertaken to make, and which the court refused to .entertain, to be entered upon the minutes, and excepted again to-the refusal to entertain it. The request is as follows:
“If any witness has knowingly testified falsely In any material particular, he is guilty of perjury, and you may disregard his entire testimony.”
For the error considered above, the judgment and order must be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.