Rosenberg v. Goldstein

The appellant relies exclusively upon alleged errors in the judge’s charge to the jury.

This was a comparatively simple accident case where a child about 11 years of age was alleged to have been injured by the negligence of defendant’s servant while driving defendant’s wagon south on Suffolk street between Broome and Grand streets.

[1] The learned judge below delivered an extensive charge in the course of which reference was made to many matters quite immaterial to the issues. Thus, for example, the learned judge charged that the defendant was not responsible for the driver’s “mere érror of judgment or miscalculation.” As there was no indication in the evidence, and no claim made by either side, that any error of judgment or miscalculation had been made, nor any fact from which that could be inferred, that charge tended merely to confuse the jury.

[2] The learned judge also charged that the jury might take into consideration the failure to produce on the witness stand a butcher, *1010whose shop plaintiff had claimed to have been visiting just before the accident, and also failure to produce his books, as having some effect on the plaintiff’s or the defendant’s case. There is not the slightest intimation in the record that the butcher witnessed the accident, and his books, of course, would be quite incompetent as evidence from any point of view. While the learned court did not intimate which side might, in the minds of the jury, be prejudiced by the absence of this alleged testimony, it did permit the jury to speculate on the subject, although it was one entirely outside of their consideration, and not connected with the issues in the case.

These and other errors are adequately presented by a number of exceptions taken by plaintiff’s counsel.

It seems evident to us that the issues were not properly submitted to the jury, and the judgment must be reversed and a new trial granted, with costs to appellant to abide the event.

LEHMAN, J., concurs.

I dissent. While the charge of the learned court' was not wholly free from error, the erroneous statement related to matters immaterial to the issue; and, in my judgment, was not of so grave a character as to justify a reversal of the judgment.