
    Anne McLean Baldwin, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    
      Release—failure of the party who gam it, as testified by her while under the influence of morphine, to call her husband,, who prescribed the morphine, to confirm her statement —it does not justify an inference that his testimony would not time been of benefit to her.
    
    In an action brought to recover damages for personal injuries sustained by the plaintiff, who was a married woman living apart from her husband and gaining her own livelihood as a trained nurse, it appeared that while the plaintiff was confined in a hospital as the result of her injuries her husband took the defendant's claim agent to the hospital, where the plaintiff, for an alleged consideration of seventy-five dollars, released her claim against the defendant.
    The plaintiff, while conceding that she signed the paper, testified that she did not receive the seventy-five dollars or any other sum for such release, and that she had no recollection of the contents of the paper.
    She explained that on the day in question she had taken a dose of morphine, furnished by her husband, who was a licensed physician, and that all of her recollections of that time were obscure and hazy.
    Neither of the parties called the plaintiff’s husband as a witness, and it did not appear that he was less friendly to the defendant than to the plaintiff.
    
      Held, that the court properly refused to charge at the request of the defendant that the jury were entitled to infer, from the plaintiff's failure to call her husband as a witness, that his testimony would not be of benefit to her.
    Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 23d day of January, 1904, upon the verdict of a jury for $6,500, and also from an order entered in said clerk’s office on the 25th day of January, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    
      I. R. Oeland [George D. Yeomans with him on the brief], for the appellant.
    
      Sutherland R. Haxtun [John B. Coleman and Joseph C. Stebbins with him on the brief], for the respondent.
   Per Curiam :

This is an action to recover damages for a personal injury, and the only question presented upon this appeal is in reference to a refusal of the court to charge certain requests made by the defendant. The plaintiff was a married woman, living apart from her husband and gaining her own livelihood as a trained nurse. She was injured by one of the defendant’s cars, on which she was a passenger, starting before she had time to alight after the car had been stopped for that purpose, and the injury appears to have been of a permanent nature. While the plaintiff was confined at the hospital the defendant’s claim adjuster entered into negotiations with plaintiff’s husband, between whom and the plaintiff there appears to have been a passive friendship, which resulted in the husband taking the claim agent to the hospital, where the plaintiff, for an alleged consideration of seventy-five dollars, released her claim against the defendant. The plaintiff concedes that she signed the paper, but she testified that she was never paid seventy-five dollars or any other sum for such release, and that she has no recollection of the contents of the paper. In explanation she testified that she had taken a dose of morphine on the day in question and that all of her recollections of that time are obscured and hazy.

At the close of the- charge to the jury defendant’s counsel made the following request: The plaintiff did not call Dr. Baldwin. I ask your Honor to charge the jury that, if the plaintiff has failed to call a witness who could throw any light on the subject, the jury may infer from their not calling him that he would not help their side.”

Obviously this is not the law; a plaintiff is not obliged to call every witness who might throw light upon the subject. He may call such witnesses as he may deem proper to establish the facts necessary to his cause of action, but a mere failure to call all of the persons who could throw light upon the subject does not subject him to any adverse inferences. However, the court made no ruling upon this particular request, and after some running comment between counsel, defendant’s counsel said: “ My point is that here was this woman’s husband with her at the time, whom she said had a certain connection with giving her certain drugs and so forth. Now, they have not called him; and I say that, where a witness is in the plaintiff’s possession, and was also present when the release was signed ■—• that is, the husband of the plaintiff, who is on good terms with her in the court — I ask your Honor to charge the jury that, under those circumstances, where they have not called him, the jury may infer that his testimony would not be of benefit to her.”

This request the learned court refused to charge, and properly, we believe. The plaintiff had testified that she had taken the morphine; it appeared in evidence that the morphine had been furnished by her husband, a licensed physician; and the burden being upon the defendant to show that its release was good, why should the plaintiff be called upon to place Dr. Baldwin upon the stand, or run the risk of having the jury charged that they might infer that his testimony would not be of advantage to her ? The defendant had the same right to call Dr. Baldwin that the plaintiff had; there was nothing to indicate that he was less friendly to the defendant than to the plaintiff; and if the latter was content to rest her case upon her own testimony in reference to the release and the circumstances under which it was procured, no rights of the defendant were prejudiced, and it had no right to have the jury charged as requested. It was for the defendant to show that it had a valid release, and undoubtedly, if it had had any reason to believe that Dr. Baldwin would have discredited the testimony of the plaintiff in any degree, it would not have failed to call him. Not caring to take this responsibility itself, it would be strange if it could get all of the effect of discrediting evidence by the mere failure of the plaintiff to call a witness upon a collateral issue, and one which was already supported by evidence of equal value. This is not a case where a party fails to call the only witness who was in a position to know the truth; it is one where there were two witnesses, and the plaintiff chose to rely upon her own testimony, leaving it for the defendant to contradict or weaken it, if it could.

The judgment and order appealed from should be affirmed, with costs.

Judgment and order unanimously affirmed, with costs.  