Mahon v. Metropolitan Street Railway Co. , 68 N.Y.S. 775 ( 1901 )

O’Gorman, J.

The only errors assigned grow out of the refusal of the trial justice to charge certain requests made by the defendant. The court correctly instructed the jury, in the colloquial charge, in the law of the case. Three additional requests touching the burden of proof, and the absence of contributory negligence were charged at the defendant’s request. Five other requests were thereupon submitted to the court, and, in refusing to charge them as requested, the justice observed, “ I think my charge covers what you ask me to charge.” Four of these five requests were properly refused, one, being the familiar rule that the jury may disregard the testimony of an interested witness, should have been charged, as that proposition had not been alluded to; but, as said in Gardner v. Erie derich, 25 App. Div. 534: “If the court had failed to charge specifically as to the proposition, requested, counsel should have pointed out the omission and corrected the court. * * * The appellants contend that this matter was not even alluded to in the charge. If that be true, then it was the duty of the counsel to call the court’s attention to the omission.” The exception is, therefore, unavailing. The charge as a whole gave the true rule by which the jury were to be governed, and the judgment should be affirmed.

Andbews, P. J., and Blahchabd, J., concur.

Judgment affirmed, with costs.