10 N.Y.S. 774 | N.Y. Sup. Ct. | 1890
1. It appears that after the plaintiff received the injuries he was taken home and placed in bed. His mother, who was called as a witness, testified, viz.: “His suffering was bad; very hard. I guess I know. He complained of great suffering. I was up day and night with him. ” Thereupon the following question was propounded to her: “ Question. You may state what complaints of bodily pain he made during the time he was confined in bed, if any.” This question was objected to as immaterial and improper and inadmissible. Thereupon the court remarked: “The question is too broad.” Then the plaintiff propounded the following question: “Q. Well, commence at the early part, just as he was placed in bed and being taken home, and state what complaints of bodily pain he made, or what you observed as to his condition of suffering. ” Similar objections to those already stated were made to this question, and they were overruled, and the defendant took an exception. The witness answered: “Answer. Well, he complained of his back in the first place, and pain in his leg. ” Thereupon the defendant moved to strike the evidence out. The court denied the motion, and the defendant took an exception; and thereupon the plaintiff propounded the following question: “Q. What complaints did he make? Tell the jury, so that they can hear you, how bad he suffered. A. Well, he complained many times that they hurt him so that he didn’t know, that he could live through.” The defendant moved to “strike out the evidence upon same grounds as stated in last objection.” The motion was denied, and the defendant excepted. The witness stated that he was “taken up and helped on the lounge Christmas morning.” Thereupon the following question was propounded to her: “How, did he complain of suffering during that time?” The answer was: “Yes, sir. Hot much. Hot as much as he had nine or ten .days the worst of his suffering. The first nine or ten days were the worst of his suffering.” In Olp v. Gardner, 48 Hun, 169, in an action which was brought to recover damages for injuries sustained by the plaintiff, “her husband was allowed, against the objection and exception of the defendant’s counsel, to testify as to complaints made by his wife, after the day of the accident, of being dizzy-headed, of a great roaring in her head, and of pain in the back of her eyes. Held, that the evidence should not have been received. * * * The evidence of statements made long after the injury as to the effect of the injury, or as to the sufferings endured
2. The case states, viz.: “During the summing up to the jury, counsel for the plaintiff stated to the jury that he would ‘read to them the law applicable to this case as it had been laid down by the court of appeals,’ and commenced to read to them authorities.” Thereupon the counsel for the defendant objected. The court permitted the authorities to be read, and the defendant took an exception thereto. While we do not propose to examine the question involved in the exception, and place our decision upon the ruling made in respect to the right of counsel to read authorities to the jury, we may observe in passing that it was the duty of the trial court to instruct the jury as to the law ofjthe case, and we may call attention to the appropriate remarks of Brady, J., in Lesser v. Perkins, 39 Hun, 343, in dealing with a similar question. He says: “The practice of reading to the jury, as done here, has been condemned by a number of adjudged cases. People v. Anderson, 44 Cal. 70; Tuller v. Talbot, 23 Ill. 357; Sprague v. Craig, 51 Ill. 288; Reich v. Mayor, etc., 17 Wkly. Dig. 141; Allaire v. Allaire, 39 N. J. Law, 113; Koelges v. Insurance Co., 57 N. Y. 638. Perhaps in this state it may be done where the matter read is the law of the case, and can by no possibility prejudice the adverse party, (Koelges v. Insurance Co., supra;) but, nevertheless, it must be said that it is a custom more honored in the breach than in the observance, and, further, should not be allowed as long as the jury are required to accept for their guidance the legal rules pronounced by the court. If the counsel desires to call the attention of the court to rule, doctrine, or maxim, and to illustrate by treatise or adjudication, it is proper to do so; but the jury, if addressed on the subject by counsel, may confuse the construction and the reading, and thus obstruct, if they do not defy, the administration of justice.” The observations made by the learned judge meet with our approval, and accord with the general practice which has come under our observation.
3. Defendant requested the court to charge the jury, viz.: “That if the