80 A.D. 324 | N.Y. App. Div. | 1903
This is an action to recover damages for injuries alleged to have been sustained by the plaintiff through the negligence of the defendant. The plaintiff undertook to prove that she was injured through being thrown to the pavement by the sudden starting of one of the defendant’s cars on which she was a passenger, and from which she was in the act of alighting. She testified that she was hurt by the fall, and detailed the character and extent of her injuries.
It appears from the plaintiff’s testimony that immediately after her fall she was attended by a Dr. Goodrich, who treated her for her injuries and who was still treating her at the time of the trial. Dr. Goodrich was not present at the trial, and his absence was not adequately accounted for. There is no evidence that he was subpoenaed. The plaintiff and her counsel stated that they had sent him word to
The court was not asked to instruct the jury that the doctor’s absence created a presumption that if present he would not corroborate the plaintiff’s testimony as to her injuries ; the request was merely that the jury might be directed to consider the plaintiff’s failure to produce this witness as a fact bearing on the plaintiff’s right to a judgment, and on the amount of that judgment. The rule that entitled the defendant to have the jury charged as requested has recently been declared by this court in Sugarman v. Brengel (68 App. Div. 377), where it is said by Mr. Justice Jenks : “ From the facts that an accessible witness who might in the nature of things corroborate the plaintiff on a material point was not called, the jury were not bound to infer that the witness would not corroborate the plaintiff. The jury might consider the failure to call such a witness and their inference might logically follow that the omission was due to the fact that the plaintiff would not be corroborated by the witness, but there is no such presumption which attaches to the mere omission to call a witness who might corroborate.” This statement of the rule is deduced from the leading cases on the subject, which are cited and analyzed in the Sugarman case. (Bleecker v. Johnston, 69 N. Y. 309; Hicks v. Nassau Electric R. R. Co., 47 App. Div. 479; Gordon v. People, 33 N. Y. 501; Schwier v. N. Y. C. & H. R. R. R. Co., 90 id. 558; People v. Hovey, 92 id. 554; Cushman, v.
Bartlett, Hirschberg, Jenks and Hooker, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.