18 N.Y.S. 561 | N.Y. Sup. Ct. | 1892
The action was brought to recover for injuries sustained by the plaintiff while a passenger on defendant’s elevated railroad, through the-alleged negligence of the defendant. The question which has been princi
• Furthermore, it appears from the record that counsel for the defendant requested the court to charge that the jury, if they saw fit; might reject the whole or any part of the plaintiff’s testimony as to how the accident happened, ■or as to the nature and extent of her injuries, because she was pecuniarily interested in the result. This the court declined, except as charged. And it appears from a reading of the charge that the court did not instruct the jury at all as to their right to reject the plaintiff’s testimony because of interest, but simply left the questions at issue upon the evidence, leaving the jury to infer that they were bound to consider the evidence of the plaintiff as of equal weight with that of any other witness. And this view is emphasized ■by the fact that, in reference to the expert testimony, he expressly charged the jury that they were not bound'by such evidence.
The counsel for the defendant also requested the court to charge that the jury were not to consider the fact of the refusal of the court to dismiss the complaint as any indication of the opinion of the court as to the facts of the case. This the court declined, and defendant excepted. We think that the court should have charged as requested, for the mere fact that the court held that it was bound to submit the question of fact to the jury was no indication that if the court had been at liberty to determine the questions, it would have determined them in favor of the plaintiff. It was only an indication that in the opinion of the court there was some evidence tending to support the claim of the plaintiff. The judgment should be reversed, and new trial ordered, with costs to appellant, to abide event. All concur.