Pfeffele v. Second Avenue Railroad

Brady, J.: This action was brought to recover damages for the alleged wrongful act of the defendants in causing the death of the plaintiffs intestate. The deceased 'was employed by Olausen & Son, and on the 26th of August, 1882, was engaged in driving one of their beer trucks across the track of the defendants at Forty-seventh street in Second avenue, when the truck was struck by one of the defendants’ cars, the effect of which was to throw him to the street, and his horses turning pulled the wheels of the truck over his body, causing his death almost immediately. He approached the track from the east. The car was going north and down a steep hill, near the bottom of which the accident occurred. The car seems to have been beyond the control of the driver, the front connection rod having been broken. The plaintiff claimed there was some evidence showing that the connection rod broke before the car reached the top of the hill and the court seems to have sustained that claim. The cause has been thrice tried, resulting twice in a verdict for the plaintiff and once in a disagreement of the jury. Many requests to charge were handed to the learned judge before he began to express his views to the jury, and many exceptions to his charge as delivered were taken. After the learned judge had expressed himself and had passed upon the requests presented on behalf of the defendants, but before the jury retired, and immediately upon his concluding, the counsel for the defendants requested him to charge the jury that if they believed the connection rod broke at the top of the hill the defendants were entitled to a verdict. To which the court responded: [499] “ I have charged your request in that respect.” The fearned counsel then said: “ I ask your honor to charge it in that language. ” To which the court said: “ I will not accept any request now, the counsel having already presented his requests to charge.” Whereupon the counsel for the defendants excepted to the refusal of the court to charge and to its refusal to accept any request. The court then said decidedly it would not allow any exception to a refusal to charge, because the court had already asked counsel to present their requests; that they had done so, and the court having charged the jury, refused to accept another request. This we think was error. The refusal to accept a request to charge is a fatal error in the conduct of a trial. (Chapman v. McCormick, 86 N. Y., 479.) It is true in that ease no requests to charge had been presented prior to the commencement of the charge. It seems to be quite apparent that in principle it makes no difference whether the requests to charge are presented before or after the charge is delivered. In Raymond v. Richmond, the right to ask after the charge' additional directions was recognized and sustained. (See 88 N. Y. Rep., 671, and Case, Ct. of App. Cas., N. Y. City Bar Ass’n, vol. 16.) While it is quite apparent that in many instances the charge itself may present an unforeseen view and create ah unforeseen necessity which may demand from counsel, in the careful conduct of their case and in the protection of their client’s rights, the preparation of other requests, a necessity which may arise from the manner in which -the previous requests had been disposed of or treated by the justice presiding at the trial, by his refusal to acquiesce in some and his treatment of others, and the expression of original views of the facts, circumstances and law of the case; yet it is impossible for counsel to anticipate what disposition of their requests will be made, or what views may be expressed with regard to them or of the case itself. In any, and indeed in all, of these emergencies the necessity for further requests may exist, and it is not only a right but the duty of counsel to make such requests in the discharge of his - professional obligations, not only to his client but to the court, as the emergency demands. It is not to be denied that requests to charge very often assist in the administration of justice, either by preventing the enforcement of a rule not applicable to the case, or by preventing the omission of one which is controlling. [500] For these reasons, although we confess with very great reluctance, it seems to be necessary to grant a new trial in this case. Daniels, J., concurred.