34 How. Pr. 144 | NY | 1864
The facts in this case are substantially like those in Williams agt. Vanderbilt, decided at this term of the court. The requests that the defendant’s counsel made upon the judge, to charge the jury, do not make this case materially different from that brought by Williams (supra). Those he first made were:
1. That the testimony did not establish that the defendant was a common carrier from New York to Sail Francisco.
3. That upon the whole evidence in the cause the plaintifi was not entitled to recover.
I am of the opinion the judge properly refused to charge either of these requests. There was sufficient evidence to make it his duty to submit the questions to the jury :
1. Whether the defendant was a common earner of passengers from New York to San Francisco ? (17 N. Y. 310.)
2. Whether he was guilty of neglect or violation of duty to the plaintiff'?
3. Whether upon the whole evidence in the cause the plaintiff was entitled to recover ?
The judge rightfully refused to charge the jury: that there was no evidence that the sickness of the plaintiff was occasioned by any fault of the defendant or his agents, and that the plaintiff was not entitled to recover damages for it. He also rightfully refused to charge them : that there was no evidence that the loss of time by the plaintifi' was occasioned by the fault of defendant; that there was no evidence of the value of the plaintiff’s time, and that the plaintiff was not entitled to recover for loss of time. The fact that there was no evidence of the value of the plaintiff’s time, did not preclude the jury from giving him such compensation therefor as they deemed was reasonable. There was sufficient evidence to make it the duty of the jury to determine whether the plaintiff’s sickness and loss of time were occasioned by the fault of the defendant, his agents or servants. And if the same were so occasioned, the plaintiff was certainly entitled to compensation therefor.
The other requests of the defendant’s counsel were as follows, to wit: “ The plaintiff is not entitled to recover his expenses incurred after receiving notice of the loss of the North America, and before commencing his journey home. The plaintiff is not entitled to recover the expenses of his return. If the jury find that the damages sustained by the
These requests were properly refused, for the reasons assigned in my opinion in Williams agt. Vanderbilt (supra), and the authorities therein cited.
The judgment in this action should, therefore, be affirmed, with costs.
' Rosekbajsts and Maevin, JJ., expressed no opinion; all the other judges concurring.
Judgment affirmed.