
    JOHN ADOLPH, Plaintiff and Respondent, v. THE CENTRAL PARK, NORTH AND EAST RIVER RAILROAD COMPANY, Defendant and Appellant.
    
      Head-note to General Term decision.
    
    I. STREET RAILROADS.
    1. Vehicles Driving along the Track.
    1. DRIVER OF CAR APPROACHING VEHICLE IN THE . REAR, AND DRIVER OF VEHICLE, RELATIVE RIGHTS AND DUTIES OF.
    (a) Driver on Vehicle.
    1. Bights of. Has equal rights with the ears to travel on the track. Neither has any superiority of right in this respect.
    
      
      Decided January 7, 1878.
    3. Duty of.
    
    1. Not to unnecessarily obstruct the cars in their due, regular and orderly passage over the track.
    3. As soon as lie becomes aware that a car is approaching him from behind, he must use reasonable diligence, prudence and speed, to get oil; the track before the car reaches him. If he omits so to do, and the ea/r comes in collision with him, he is chargeable with contributoi'y negligence.
    
    3. To pay such attention to the approach of cars in the rear, as a man of ordinary prudence, care and intelligence, would, under similar circumstances, give, consistent with the other duties of looking ahead, and on both sides. He is not specifically called on to look out for vehicles approaching from behind ; that is, to turn round and keep a lookout behind at all times.
    (5) Dbiveb of Cab.
    1. Bights of. To pass without unnecessary obstruction over the track, in due, regular and ordinary course.
    3. Duty of. To keep such a distance behind a vehicle in front, and to keep his horses and car under such control, as that they will not collide with the vehicle when it attempts to get off the track.
    3. CONTRIBUTORY NEGLIGENCE.
    1. Driver of vehicle, what does net constitute on his part.
    
    
      (a) UNNECESSARILY ON THE TRACK. The fact that a vehicle is being unnecessarily driven on the track, does not of itself constitute contributory negligence, nor is it a fact to be taken into consideration in determining the question of c’ontributory negligence ; nor does it require the driver of the vehicle to use greater care and diligence and keep a better lookout than he would otherwise be bound to.
    Before Sanford and Freedman, JJ.
    
      Head-mote to Judge Sedgwick’s charge.
    
    I. Evidence.
    1. CARE, DILIGENCE AND PRUDENCE.
    1. Standabd of. It is that'which, as experience teaches us, men of ordinary caution and prudence would exercise under similar circumstances.
    
      («) Weighing a man's faculties. The jury are not to.weigh a man’s faculties and see how smart he was, how bright, how attentive, and say whether or not, as a matter of fact, he was as prudent as he could be by nature.
    2. CAPACITY POR OBSERVATION.
    1. Elements oe. Cultivation of the mind, and quickness of the faculties and of sight, are.
    
      (a) In judging of the evidence of several witnesses who have testified to the same occurrence, their capacity to observe is to be thus tested.
    
    3. WITNESSES.
    1. Pabts oe theib Testimony may be Taken.
    
      (d) The jury may take parts of the testimony of the witnesses in connection with all the probabilities of the case, and thus determine the fact.
    1. It is not nemsary that they should take the whole of any one witness’s statement.
    
      Charge delivered.November 23, 1876.
    Appeal by defendant from judgment entered upon verdict of jury, and from order denying motion for new trial.
    The plaintiff in this case was driving a loaded wagon along the track of defendant’s railroad. One of defendant’s cars approached behind him. Plaintiff turned his horse to drive off the track. Before the wagon had got entirely clear of the track, the car struck its tail and upset it. Plaintiff’s wagon and horse, and himself were injured. To recover for these injuries the action is brought.
    There have been two trials of the cause.
    Upon the first trial a verdict was directed for the defendant upon motion, oh the ground that no negligence had been shown on the part of defendant, and that the plaintiff had been guilty of contributory negligence, judgment was suspended, and the exceptions ordered to be heard at the general term in the first instance. The decision of the trial term was affirmed (33 Superior Ct. 186).
    From the judgment thereupon entered, the plaintiff appealed to the court of appeals, and the case came up for argument before the commission of appeals, which by a vote of three to two reversed the decision of this court, and held that there was a question for the jury (65 N. Y. 554).
    The second trial was had before Judge Sedgwick and a jury. The judge submitted the cause to the jury-
    The charge of the judge, with the above statement, sufficiently indicates the nature of the case, the evidence, and the facts.
    The charge, with the exception of two passages which are not material here, was as follows :
    Gentlemen :—The most general rule of law that is ' applicable to this case is that the driver of the wagon, the plaintiff, and the driver of the car, were each of them bound to use the prudence of a man of ordinary caution and intelligence. In their conduct they must come up to that standard. Neither is held to extraordinary care, but to the care that is given by men of ordinary caution and ordinary intelligence, under the circumstances that you shall find to exist. Of course it is impossible that the law should make any other standard than that. You do not try to weigh a man’s faculties and see how smart he was, how bright, how attentive, and say whether or not as a matter of fact he was as prudent as he could be by nature. It would be impossible for a jury to do that, or a court, if they attempted it. They can only compare a man’s actions with ordinary prudence and "care, as the jury know it from their own experience. And that rule of law you will keep in mind, of course, in passing upon the facts of the case, in saying which party in this controversy is wrong.
    
      The next rule of law which it is required that the courts shall turn the attention of the jury to, is that the plaintiff must make out a case. If he does not establish by a preponderance of evidence what it is necessary for him to prove in making out such a case as this, then the jury cannot say that he has made out a case, and must find for the other party.....I have omitted two 'witnesses for plaintiff—the boy and the officer, Mr. Greubelstein. As to the boy, it is right that you should bear in mind that at the time of the transaction he was eleven years of age. If he was then what he is now, he was, undoubtedly, a smart, clearheaded, honest young fellow, but his youth affected his capacity to observe many facts at the same time. That is, the best cultivated minds, and having the quickest sight and the quickest faculties, can see several things at once, and weigh them at once. The more immature or the less cultivated they are the more the attention is fixed upon a part of a transaction. I do not mean, in saying that, that you shall disregard the boy’s testimony, or to weaken its effect in any way; I merely call your attention to that fact, which is a fact which you must consider in weighing his testimony.
    Then in regard to Mr. Greublestein’s testimony— you have had him before you.....
    You will reconcile the testimony together. It is not necessary for you to take the whole of any one witness’s statement. You may take parts, and take all the probabilities of the case, and all these considerations that I have alluded to, and say what, as a matter of fact, occurred at that time, putting these facts together in their natural and probable order. And in judging, in the way that I have endeavored to describe, you will get considerable aid in judging of the probabilities of the case from such undoubted facts as there may be in the evidence.
    
      I think this fact is clearin the beginning, but you must say whether it is or not. Groeneman, the boy, could not say when Adolph, the plaintiff, came on Avenue A. The witnesses for the defendant, three or four of them—four, I think—the driver, the conductor and the two Dempseys—say that he came on the avenue and on the track of the defendant, and was before the car of the defendant between Fifteenth and Sixteenth streets. Now, Mr. Adolph does not say when he came on, and does not explain that, and therefore, unless you disregard the whole of the testimony, and do not take into consideration those things that I have said as to the absence of any testimony on the part of the plaintiff, then I think you will come to the conclusion that the loaded wagon which Mr. Adolph, the plaintiff, was driving, was on the railroad between Fifteenth and Sixteenth streets, and the car was behind it. Now, if that be the case, gentlemen, you will apply your minds to what would be probably done under the circumstances, and then say as to whether or not the evidence of the" witnesses for this defendant is true—that from the point at which, between Fifteenth and Sixteenth streets, the plaintiff did come on, they were calling to him and whistling, etc. Mr. Dempsey thinks they called once before the final accident. Mr. Donovan says it was several times. The driver’s testimony on that point you have heard, and the other Dempsey’s testimony. Now say whether you think he was called to several times.
    A Juror: I would like to ask a question. Does it appear in the evidence where the car was when he saw them come on the street % The car may have been back three or four blocks.
    ' Mr. Vanderpoel : Half a block.
    The Court : That is a very material consideration, but whether it was or not, you take all the facts together, that it was within that distance that it required the hallooing, if yon believe that was done, and also the car to vary its speed according to the rate of the wagon ahead of it; consider the facts as they are.
    Mow, if those facts are established, what was the duty of the plaintiff in respect of it ? He had as good a right on that track as the defendant’s car; there was no superiority of right; he had a right to travel on the track. But the defendant’s car could move but in one direction—on the rails—and therefore the law says that it is the duty of a wagon situated as the plaintiff’s wagon was, to get out of the way of a car immediately behind it, using reasonable care for that purpose, and all the speed that might be reasonably required under the circumstances ; and in addition, as it was the car driver’s duty to observe the wagon ahead of the car, on the other hand it was the duty of the driver of the wagon, the plaintiff himself, knowing that this was the condition of things, knowing how this track was occupied, knowing that cars were coming along, to give that attention to the situation of things behind him that might be called for from a man of ordinary intelligence, while at the same time he was doing his other duty in looking ahead of him, and on both sides. That is, it was not his positive duty to keep a lookout behind at all times, because it was his duty to look ahead and on each side ; but he was to give some attention to it, and such attention as you, as jurymen, think should be reasonably given under those circumstances. Then you will say whether or not, if giving that reasonable atttention, he could have known that this car was following behind him, and was intending to assert its rights to pass along the track, and could have gone off on the west side, the east side by the conceded testimony being obstructed. If he did not give such attention, then to that extent the plaintiff would be guilty of contributory negligence, if that negligence led to the accident.
    
      These are considerations immediately prior to the time of the accident happening. Now the accident is about to happen and there is a conflict of testimony; I think the broadest conflict of testimony that there is. Mr. Q-roeneman says that the car was thirty or forty feet off when he heard the car-driver halloo, or first noticed the car. The plaintiff says it was fifty feet off. Mr. Greubelstein’s testimony on that point I am uncertain as to, and the jury must find what it was.
    On the other hand, the defendant’s witnesses say that the car was much nearer the wagon than that; they say it was within five or six feet of it immediately before the accident happened. You must determine the distance and say what it was. Now the plaintiff being obliged to prove his case under those circumstances, if this be the fact that the car, when he first saw it, was at such a distance from him that by using reasonable diligence, prudence and speed, he could have gotten off the track before the car came upon him, he is guilty of the kind of negligence which deprives him of his action, and that ought to be the law. Two parties together produce an accident; nobody, no court, no jury could tell which did the most of it and which was most guilty. One does it as much as the other. On the other hand, if he used that kind of caution that I have described, and could not get off the track any more quickly than he did, could not avoid the effect of the onward movement of the car, then he is not guilty of contributory negligence, and on that point you will decide in his favor.
    The next thing will be, was the defendant, under those circumstances, guilty of negligence ? Well, now, gentlemen, the defendant is called upon to use the same kind of caution as the plaintiff is called upon to use. Now recollect all the circumstances ; where the car was behind the wagon, how it was following on, what a reasonable man would be led to think after following a man a block or half ¡ a block as to his not getting off at any particular time; that is, whether having shown that he did not hear the car-driver, or did not attend to the car-driver, if he chose to keep on the track, what reason there would be for a car-driver, under those circumstances, to believe that suddenly, without any notice, he meant to get off the track.
    Look at that circumstance. Look at the circumstances on the other hand under the rule of law that I have given to you impliedly, that the car-driver was bound to keep such a distance behind the wagon, and to keep his horses and his car under such control that they would not run against the wagon when it did get off. Look, if you can find from the testimony of the case, at what speed the plaintiff was turning off; whether or not if he had continued that speed there would have been a collision. Because one ©f the positions of the defendant is—and one of the witnesses swears to it—and it is more or less a matter of opinion, and you must be yourselves the judges of that—that if this wagon had continued at the rate at which it began to go it would have passed beyond the track, and there would have been no collision.
    The witnesses for the defendant at the same time say that there was a jerk of the reins which made the horse go more slowly without bringing the wagon to a stop. Look at all those things and say whether or not the defendant, the car-driver, was guilty of negligence in judging as to the probability of this car’s striking the wagon tail, and if you are satisfied from the evidence that the defendant was negligent, you will, having found before that the plaintiff was free from negligence under the circumstances of the case, find a verdict for the plaintiff, and you will then assess Ms damages, which will be a full compensation for the sufferings, as he has given in evidence, from his injuries that have happened, and for all the suffering that will happen during the time that the injuries are likely to continue—you will give him a compensation for the injury to his horse and for the injury to his wagon.
    On the other hand, if the plaintiff has left the case in such doubt that you are not able to say that the preponderance of evidence is in his favor, why then you must find for the defendant; or, if you find that the plaintiff is guilty in any degree of contributory negligence, you must find for defendant. And again, if you find that the defendant was without fault you must find for him.
    Defendant’s counsel submitted various requests to charge.
    Only those which the judge refused will be adverted to. Those refused were numbered 5, 6, 7, 8, 9, 10, 11, and 12. They were :
    V. “That the plaintiff, under the circumstances, was bound to exercise care and diligence, and keep a lookout for a car approaching from the rear.”
    I refuse to charge this.
    To the refusal of the court to charge said request, defendant, by its counsel, then and there duly excepted.
    But I do charge he was bound to exercise care and diligence, and he was bound to pay such attention as his other duties in front of him would permit, but the approach of a car in the rear he was not specifically called upon to look out for ; that is, to turn around, but he must give some attention to that. That, in going along any railroad street, is as important as anything else ; he knows that the cars come along, and they have, as I have explained, a right to pass him, —that is, a right to demand that he should get out of the way.
    X. “If the plaintiff saw the approaching car in time to get off the track and did not do so, then he he was guilty of negligence and cannot recover.”
    I prefer to refuse that, because I will modify it. If he saw it, and then under all the circumstances of the case, by using ordinary skill in the management of his horse, the same kind of skill that the driver of the car was called upon to use with his horse, and under the circumstances of the case, if he could have got off, why, then he was bound to do it; and if his not getting off led to the accident, then he cannot recover.
    To the refusal of the court to charge said te'nth request, and to the charge of the court in respect thereto, and modifying the same, defendant, by its counsel, then and there duly excepted.
    XI. “ It is undisputed that the plaintiff drove upon 'the track of the defendant for upwards of two blocks, and it was his duty, under the circumstances, to have kept a lookout behind him for an approaching car, and if he did not do so, then he was guilty of negligence and he cannot recover.”
    I refuse to charge you, gentlemen, in those terms.
    To which refusal of the court to charge said eleventh request, defendants, by its counsel, then and there duly excepted.
    I say I think the great weight of the evidence in this case is, that he was before the car from a point between Fifteenth street and Sixteenth street, to the point between Seventeenth and Eighteenth streets, where the accident happened. That is a question, however, for you, although that is my opinion; and then, instead of being his duty to keep a lookout, I hold that he was called upon to attend to it in the way I have several times described to you.
    A Juror: I would like to ask a question. My mind is far from being clear upon this point; suppose this plaintiff had stood on the track in front of that car, and they knew that he knew that he stood there, and they had come np and hit him as they did.
    The Court : How, gentlemen, there is a disadvantage in taking supposititious cases; but if it is any illustration, let me say, that if, under those circumstance, the car coming up behind should run into the wagon, it would be guilty of negligence, which, so far as that is concerned, would give the man a right of action, but the man would lose his right of action for standing on the track, as being guilty of contributory negligence; in such a case as this they would be guilty of negligence, and the party injured could not recover from the other.
    The defendant also requested the court to charge as follows :
    VI. “Upon the evidence in this case it is undisputed that the plaintiff was unnecessarily upon the' track of defendant at the time of the collision, there being nothing to prevent his driving upon one side of the track.”
    The court refused so to charge, to which refusal the defendant, by its counsel, then and there duly excepted.
    The defendant also requested the court to charge as follows :
    VII. ‘£ That this is a fact to be borne in mind by the jury in determining whether the plaintiff was free from negligence.”
    The court refused so to charge, to which refusal the defendant, by its counsel, then and there duly excepted.
    The defendant also requested the court to charge as follows:
    VIII. “ From the fact of the plaintiff’s having driven his wagon on the railroad track, in front of the car, and continuing thereon without any apparent necessity, he was bound to use greater care and diligence, and keep a better lookout, than he would have been if he had not been on the track, that he might avoid the collision.”
    The court refused so to charge, to which refusal the defendant, by its counsel, then and there duly excepted.
    The defendant also requested the court to charge as follows:
    IX. “ The defendant was entitled to the unrestricted use of its rails, for the progress of its cars, and the plaintiff, being unnecessarily on the track, was bound to exercise care, to see that an approaching car was not impeded, and if by reason of the plaintiff’s being there, the collision ensued, the plaintiff cannot recover even though the conductor and driver of the car were negligent.”
    The court refused so to charge, to which refusal the defendant, by its counsel, then and there duly excepted.
    The defendant also requested the court to charge as follows :
    XII. “ The verdict should be for the defendant.”
    The court refused so to charge, to which refusal the defendant, by its counsel, then and there duly excepted.
    The jury thereupon retired, and afterward returned a verdict for $5,000.
    Defendant’s counsel moved for a pew trial upon the minutes, which was denied, and an order was entered to that effect.
    Judgment was thereafter entered on the verdict; from which, as well as the order denying the motion for a new trial, the present appeal was taken.
    Vanderpoel, Green & Cuming, attorneys, and Almon Goodwin, and A. J. Vanderpoel, of counsel, for appellant, urged :
    —I. The court below should have granted the motion for the dismissal of the complaint, or have directed a verdict for the defendant. Failing-in this, it should have granted the motion for a new trial, which was denied. We desire to call the attention of the court to the fact that plaintiff now admits his hearing the shout of the driver, which introduces a new element'in the case, and also to the overwhelming preponderance of evidence that the plaintiff jerked his horse as he turned from the track and by his unskillfulness produced, or at least, contributed to the accident. All that the majority of the commission of appeals decided upon the facts before them was that there was some evidence to go before the jury as to whether the plaintiff’s negligence contributed to the injury. The duty of the court still remained, after submitting the case to the jury, to set aside their verdict when it was clearly against the weight of evidence (Hollacher v. O’Brien, 5 Hun, 277; Adsit v. Wilson, 7 How. Pr. 64 ; Heritage v. Hall, 33 Barb. 275 ; Cothran v. Collins, 29 How. Pr. 155). If the court shall be of the opinion that, under the decision of the commission of appeals, the case was one to go to the jury, we ask its attention to the errors in the manner of submitting it.
    II. The court erred in refusing to charge the sixth, seventh, eighth, ninth, tenth, and eleventh, requests of defendants. We submit that the charge did not cover the ground fully and fairly and the exception and the refusal to charge as requested cover the whole ground. First. The court erred in refusing to charge the fifth request (Baker v. Savage, 45 N. Y. 191; Ernst v. Hudson River R. R. Co., 24 How. 97 ; Nicholson v. Erie R. R. Co., 41 N. Y. 542 ; Baxter v. Troy and Boston Co., Id. 502 ; Hart v. Central Co. of N. J., 42 Id. 472 ; Griffen v. N.Y. C. R. R. Co., 40 Id. 34; Wilcox v. Rome, &c. R. R. Co., 39 Id. 358; Wild v. Hudson River R. R. Co., 29 Id. 315 ; Bunn v. Delaware, &c. R. R. Co., 6 Hun, 303; Wild v. Hudson River R. R. Co., 24 N. Y. 430, 442; Warner v. N. Y. Central R. R. Co., 44 Id. 465, 470 ; Meyer v. Clark, 45 Id. 285, 289). Third. The refusal to charge * the eighth request was error (Wilbrand v. Eighth Ave. R. R. Co., 3 Bosw. 314 ; Barker v. Savage, 45 N. Y. 191, 194; Suydam v. Grand St., &c. R. R. Co., 41 Barb. 377; Whittaker v. Eighth Ave. R. R. Co., 51 N. Y. 295, 299. See also Hegan v. Eighth Ave. R. R. Co., 15 Id. 382; Belton v. Baxter, 14 Abb. Pr. [N. S.] 404). The rule applicable to a person driving on the wrong side of the road is closely analogous. Although a person is not bound to confine himself to his proper side of the road, yet if he does not, he is bound to use a greater degree of caution than if he kept the proper side (Pluckwell v. Wilson, 5 C. & P. 375 ; 24 E. C. L. R.; Simonson v. Steltenerft, 1 Edmonds, 194). Fourth. The court also erred in refusing to charge the ninth request of the defendant. The request was in accordance with the rule laid down in Hegan v. Eighth Ave. R. R. Co., 15 N. Y. 380, 383; and Willbrand v. Eighth Ave. R. R. Co., 3 Bosw. 314. Fifth. The court also erred in refusing to charge the defendant’s tenth request (Wild v. Hudson River R. R. Co., 24 N. Y. 430, 442; Warner v. N. Y. Central R. R. Co., 44 Id. 465, 470; Meyer v. Clark, 45 Id. 285, 289).
    III. The court below, as we have shown, did not submit the question of contributory negligence to the jury in such a manner as to impress upon them properly the rule of law and the bearing of the facts in the case upon it. The jury overlooked, or entirely disregarded other parts of the charge, so that their verdict was against the charge as actually given. What is the duty of an appellate court upon such a state of facts has been very clearly laid down (Sheldon v. Hudson R. R. R. Co., 29 Barb. 226, 229; Haring v. New York & Erie R. R. Co., 13 Id. 380; Suydam v. Grand St., &c. R. R. Co., 41 Id. 380; Macy v. Wheeler, 30 N. Y. 231, 237).
    
      M. L. Townsend, attorney, and of counsel for respondent, among other things, urged :
    —I. The plaintiff had the right to be upon the track where he was, and to drive his wagon upon or across it, and it was as much the duty of the defendant to keep its car off the plaintiff’s wagon, as it was that of the plaintiff to escape being run over (Opinion of Earl, C.; Hegan v. Eighth Avenue R. R. Co., 15 N. Y. 380).
    II. It being plaintiff’s duty to turn his horse and wagon off the track when he saw or heard the car approaching, he had a right so to do, and to sufficient time for that purpose ; and it was the duty of the driver of the car to give him a reasonable opportunity to do so (opinion of Earl, C.); and in turning off the track the plaintiff was chargeable only with the exercise of that care, which, under similar circumstances, would be exercised by ordinary men ; quoted with approval by Lott, C., in Eaton v. Erie R, Co. (51 N. Y. 551): “If plaintiff uses ordinary care he cannot be deemed to have contributed to the negligence ” (Centee v. Furney, 17 Barb. 94, 97, and cases cited; Eakin v. Brown, 1 E. D. Smith, 36).
    III. None of the exceptions taken by the defendant’s counsel to the refusal of the learned judge to charge specifically as requested, were well taken. In considering these exceptions, we ask the court to examine the whole charge in connection with the several requests; keeping in view the following rule as laid down by the court of appeals in Sperry v. Miller, 16 N. Y. 413. “In considering whether a single proposition contained in a charge is erroneous, it is to be construed in connection with the context. The whole charge, or so much of it as is connected with and tends to modify or explain the part claimed to be objectionable, is to be considered in determining whether an error has been committed. Admitting that the part of the charge excepted to, when isolated from the context, is erroneous, yet a new trial is not to be granted for that cause, when it appears that the jury could not have been misled thereby.”
    IV. It was not error for the judge to refuse to charge the ninth request in the phraseology asked, and the exception to the refusal is not well taken. This request embraces three distinct propositions, and if either of them is not correct, it was not the duty of the court to charge as requested. The rule is stated in Carpenter v. Stillwell (11 N. Y. [1 Kern.] 79), as follows: “ That a request must be in such form that the judge may properly charge in the terms of the request without qualification” (Haggart v. Morgan, 5 N. Y. 422; Hunt v. Mayber, 7 Id. 266). 1st. We deny “That the defendant was entitled to the unrestricted use of its rails for the progress of its cars” (Baxter v. Second Avenue R. R., 3 Rob. 511 ; Hegan v. Eighth Avenue R. R., 15 N. Y. 380. See opinion of Monell, J., in the case at bar, 33 N. Y. Super. Ct. 188, overruling the dictum in William v. Eighth Ave. R. R. Co., 3 Bos. 320 ; Fettretch v. Dickinson, 22 How. Pr. 248). 2nd. We have shown that the plaintiff was not unnecessarily on the track.” 3rd. We deny the correctness of the proposition, that “if by reason of plaintiff’s being there the collision occurred, the plaintiff cannot recover, even though the conductor and driver of the car were negligent.” Surely a car-driver cannot with impunity, negligently drive over and injure a person, although such person may be for the moment unnecessarily on the track (Kenyon v. N. Y. C. & H. R. R. Co., 5 Hun, 479, and cases there cited ; Green v. Erie R. R. Co., 11 Hun, 333).
   By the Court.—Freedman, J.

—The issues were re-tried in strict conformity with the law as laid down by the majority of the commission of appeals in 65 JY. Y. 554. Under that decision the trial judge was not at liberty to grant a non-suit or direct a verdict for defendant. Whatever differences there were between the testimony of the last and the preceding trial, rather strengthened than weakened plaintiff’s case. All questions involved were, under the law laid down for the guidance of this court, fully and fairly submitted to the jury, and their verdict cannot be disturbed as being against the weight of evidence or excessive. 3N"or can I discover any error in the admission of evidence, or the refusals of the learned judge to charge -otherwise than he did charge, or the refusal to grant a new trial.

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

Sanford, J., concurred.  