
    YUNKEICH v. BROOKLYN HEIGHTS R. CO.
    (Supreme Court, Appellate Division, Second Department.
    March 14, 1902.)
    Remarks of Judge—Correction in Charge.
    Any error in remark of the judge in presence of jury that there is no evidence of negligence of the motorman is cured by his leaving to the jury the question of his negligence, and stating in the charge that when he said he should withdraw from their consideration any question of his negligence he overlooked certain testimony, and that this testimony was for them to be considered on that question.
    Goodrich, P. J., and Hirschberg, J., dissenting.
    Appeal from trial term, Kings county.
    Action by Charles Yunkeich, an infant, by Karol Yunkeich, his guardian ad litem, against the Brooklyn Heights Railroad Company. From judgment on a verdict for defendant, plaintiff appeals.
    Affirmed.
    The judge, in the presence of the jury, said that there was no evidence of negligence of the motorman, but left the question of his negligence to jury, and in his charge stated to the jury that when he said he should withdraw from their consideration any question of the motorman’s negligence he overlooked certain testimony, and that this testimony was to be considered by them on the question of the motorman’s negligence.
    Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.
    William O. Miles, for appellant.
    I. R. Oeland, for respondent.
   WOODWARD, J.

The evidence in this case was submitted to the jury upon a charge to which there was no exception which is urged upon this appeal, and the jury has found in favor of the defendant. The points suggested by the plaintiff relate to matters occurring upon the trial, in which the learned court interjected comments, but in -none of these do we find matters prejudicial to the plaintiff's case. The very full and complete charge of the learned court in reference to the duties of the motorman, expressly correcting the alleged error in holding as a matter of law that no negligence on the part of the motorman in approaching the plaintiff had been shown, presented a clear issue for the jury, and we discover no reason for a reversal of the judgment. The case was properly disposed of by the jury, under the evidence.

The judgment and order appealed from should be affirmed.

Judgment and order affirmed, with costs. All concur, except GOODRICH, P. J., and HIRSCHBERG, J„ who dissent  