
    STEPHEN A. WEST, Respondent v. THE MANHATTAN RAILWAY COMPANY, Appellant.
    
      Charge, exception to, Request to charge exceptions to refusal, Striking out evidence, exception to refusal, when no ground, presented thereby for refusal, and reasons therefor.
    
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.
    
      Decided June 20, 1888.
    This is an action for damages by reason of personal injuries. Three points were raised on appeal.
    First:—That the trial judge erred in refusing to charge as requested “ that the jury cannot upon the testimony in the case allow any damages for medicine, lotions or medical material.”
    Second:—That the trial judge erred in refusing to charge as requested: “ That prior to the adoption of the Code of Procedure in this state*, or prior to the present constitution of this state, the plaintiff:, being a party, was not a competent witness in his own behalf, and that it is under that constitution he is enabled to be a witness, and the question as to his credibility is entirely one for the jury, and that they have a right in considering the case to wholly reject his evidence; ” and erred in charging in this regard as follows : “ I charge you without any reference to the constitution that the plaintiff’s testimony, as that of every other witness, is to be considered by you and believed or disbelieved according as your good sense and judgment govern you‘”.
    Third:—That the trial judge erred in refusing to strike out the testimony that plaintiff immediately after the accident said “ Take these splinters out of my leg; take these splinters out.”
    
      
      Davies & Rapallo, attorneys, Edward 8. Rapallo and Henry D. Sedgwick, Jr., of counsel for appellant.
    
      Taylor & Parker, attorneys, and Alfred Taylor, of counsel for respondent.
   Held (Sedgwick, Ch. J., writing),

as to the first point, “ that under the charge of the judge as made, the jury were not at liberty to give anything for the cost of medicine, etc.; that the matter of the request was unnecessarily introduced by the plaintiff and therefore he could not avail himself of an exception to a ruling on it; and further that the request was ambiguous in form and meaning, it being neither a request to charge that there could be no recovery for the cost of the medicine, nor a request that the jury could not allow for the using of medicine. In the latter aspect the jury could have found something for the plaintiff being obliged to take the medicines, as they were uncomfortable, nauseous, destructive of appetite and caused one to live in the atmosphere of a druggist’s shop; for which the jury could give compensation.”

As to the second point, “ that the charge was correct as to the credibility of an interested party and covered the substance of the request; and that the general exception to the charge as made did not raise any question as to the use of the words 1 as that of every other witness,’ the attention of the court being thereby particularly called to that phrase as being objectionable.”

As to the third point, “ that the words were admissible under the rule that allows exclamations. A strict grammatical construction should not be used. The jury might find the words were exclamatory in reality. There were as matter of fact no splinters in his leg. The words were not' received as evidence of there being splinters. The jury might find that pain forced out the words.”

Truax and Dugro, JJ., concurred.  