
    Annie Schaefer, Respondent, v. The Metropolitan Street Railway Co., Appellant.
    (Supreme Court, Appellate Term,
    April, 1901.)
    Negligence — Improper refusal to charge as to preponderance of evidence.
    Where the court refuses to charge, in an action predicated upon negligence in which the plaintiff succeeded, that if upon the whole ease the evidence is equally balanced, either upon the question of the defendant’s negligence or that of the plaintiff’s freedom from contributory negligence, the jury must find for the defendant, there must be a new trial as the defendant is entitled to the charge.
    
      Appeal from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, tenth district, borough of Manhattan.
    G. Glenn Worden, for appellant.
    Matthew F. Ennis, for respondent.
   Per Curiam.

The plaintiff recovered a judgment for $250 in an action for personal injuries. The justice in charging the jury, after stating the versions of the respective parties, limited his instructions on the law to the statement that it was incumbent on the plaintiff to satisfy the jury by a preponderance of evidence that her injuries were occasioned solely by the negligence of the defendant, without any negligence on her part.

Thereupon this colloquy ensued: Defendant’s attorney — “I ask your Honor to charge, if upon the whole case the evidence is equally balanced, either upon the question of the defendant’s negligence or the plaintiff’s freedom from contributory negligence, they must find a verdict in favor of the defendant.” The Court — “I will let the jury say.” Defendant’s attorney — “ Will your Honor charge that as requested.” The Court — “I decline.” Defendant’s attorney — “To your Honor’s refusal to charge as requested, the defendant excepts.”

There is nothing in the very brief charge that can be deemed to have covered this request; it was sound in law and the defendant was entitled to have the jury so instructed. Brockman v. Metropolitan St. R. Co., 32 Misc. Rep. 728; Newcomb v. Same, 34 Misc. Rep. 203, 68 N. Y. Supp. 780. The unqualified refusal, as well as the misleading inference involved in the statement, “ I will let the jury say ”— implying that they were to determine the consequence attending evenly-balanced testimony — was certainly prejudicial to the defendant and constitutes reversible error.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.

Present — Bischoff, P. J., Leventbitt and Clabke, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  