Eisler v. Brooklyn Heights Railroad

The learned counsel for defendant requested ■the court to chargé the jury as follows: “ I ask your honor to charge the jury, in view of this request, that there is no evidence in this case that would warrant them in finding that this car which collided with this wagon could have been stopped within fifteen feet.” The court added “ at the speed it was going,” and charged the request, and the plaintiff’s counsel duly excepted. The mo tor man had testified that -the plaintiff attempted to drive his horse and wagon across the track when the approaching car was about’ twenty feet off, and that the car was moving at the usual rate, of speed. On cross-examination, he was asked: “ Q. Within what distance can you stop your car? A.'Well, there are different cars; you can' stop at'different distances. Q. Wha.t is the greatest distance, and what is the shortest distance ? A. You can stop a car in fifteen feet or less.” In view of the testimony of the *648motorman, we are of opinion that the charge before set forth was error, and that the learned trial judge -properly granted a néw trial. It is, therefore, not necessary to examine the other questions in the case.

, Order granting new trial affirmed, with costs.

. Present: .Clement, Oh. J., and Osborne, J.

Order affirmed, with -costs. 1 ■