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O'NEIL v. THIRD AVE. R. CO.
PRATT, J. This was an action for damages for personal injuries.
The material allegation in the complaint is as follows: “That when said car slowed up sufficiently for that purpose, plaintiff started and undertook to get off, but while in the act of stepping down from said car into the street the said defendant negligently, carelessly, and recklessly started, increased, and accelerated the speed of said car.” As to the course, manner, and result of the accident the plaintiff was the principal witness in his own behalf, and he was not contradicted nor impeached, nor was he corroborated upon some vital points in the case.
It is not very clear that the plaintiff was free himself from negligence which contributed to the accident, but that question was submitted to the jury under the following words: “This plaintiff must show you that he was free from fault here, and that the defendant was at fault,” so that, in that regard, the plaintiff had no cause of complaint.
The court also said in its charge: “Where a person is interested in an action, it is for the jury to say, after having heard Ms testimony, what credit they will give to it.” The plaintiff took no exception to the charge, and the jury were at liberty to find a verdict for the defendant upon either of the above propositions. Bank v. Diefendorf, 123 N. Y. 191-200, 25 N. E. 402. See, also, Belton v. Baxter, 58 N. Y. 411, and Hart v. Bridge Co., 80 N. Y. 622.
The only further questions available to plaintiff to reverse that judgment are those relating to rulings upon the admission and rejection of evidence upon the trial. The evidence of the clerk as to the rule about reporting cases, and that the office had received no report, we think was relevant, and properly admitted, when all the facts and circumstances of the case are considered. It was proving the absence of a circumstance which would naturally follow if the contention of the plaintiff was true.
The exception to the ruling of the judge made at request of the defendant, “that the nonproduction of a witness who knows nothing of the accident does not justify an inference against the defendant,” is too plainly right to require comment. Judgment affirmed, with costs.