Taube v. Dry Dock, East Broadway & Battery Railroad

The order appealed from is affirmed, on the opinion of the trial justice filed February 19, 1895.

All concur.

The opinion of Fitzsimons, J., at trial term is as follows:

Defendant’s counsel requested me to charge “ that if the jury believe that the plaintiff made to Drs. Muscovitz and Michol the admission that has been proven in this case, — that he was getting off the ear while it was in motion, and before it stopped, — that defendant is entitled to a verdict.” I charged: “If he made that admission, and the jury believed it (i. e., that he made this admission), I charge you that in that event the verdict would have to be in favor of defendant.” In effect, I charged that, although if the jury believed that plaintiff was entitled to a verdict because of defendant’s negligence, and his freedom from contributory negligence, yet their verdict must be for defendant, if they believed that defendant stated to Drs. Muscovits and Michol that he was injured by getting off the car while it was in mo*824tian. It seems to me that it is not necessary to cite any authorities, or indulge in any argument, to prove the error of such direction. Error is apparent on its face. Surely, the mere admission referred to, made out of court, could not have defeated a recovery by plaintiff of a verdict herein, providing he proved defendant’s negligence, and that he was free from contribútory negligence. Yet I so charged, and for that reason a new trial must be granted. Settle order upon notice.