
    Kate Reilly, Respondent, v. The Eastman's Company of New York, Appellant.
    (Supreme Court, Appellate Term,
    June, 1899.)
    Trial — Improper remark of trial judge retracted and new trial refused.
    Where a trial judge directs a jury to disregard a remark which he made in their presence, upon the trial of an accident case, to the effect that there was “ evidence of the injury sufficient for a big verdict if the jury believe it ”, a new trial will not be granted, and particularly where the verdict indicates that the defendant was not prejudiced by the remark.
    Reilly v. Eastman’s Co., 27 Misc. Rep. 322, affirmed.
    Appeal by the defendant from a judgment of the General Term of the City Court, affirming a judgment rendered in favor of the plaintiff and affirming an order denying a motion for a new trial.
    M. A. Kursheedt (Joseph Fettretch, of counsel), for appellant.
    John C. Robinson, for respondent.
   Freedman, P. J.

This action was brought by the plaintiff to recover for personal injuries alleged to have been sustained by the negligence of the defendant’s driver. We have given the testimony taken in the case, as well as the briefs of counsel, careful examination and fail to discover any reversible error committed on the trial.

There was sufficient evidence of the negligence of the defendant’s driver to justify and require its submission to the jury, and it was not shown that the plaintiff was guilty of contributory negligence.

During the progress of the trial, the judge made this remark to the attorney for the plaintiff in the presence and hearing of the jury: “ You have evidence of the injury sufficient for a big verdict if the jury believe it.” The defendant’s counsel thereupon excepted. The appellant strenuously urges that this was error for which a new trial should be granted. The case does not show, however, that in the end the defendant was prejudiced thereby. In his charge to the jury the court said: “ In regard to some remark that slipped my tongue when the attorney was trying to bring out in his examination some more evidence as to plaintiff’s injury and so on when I said you have evidence of the injury sufficient for a big verdict if the jury believes it, you will entirely discard that remark and eliminate it from your minds. I did not intend thereby to influence the jury, and do not think I did, and if so, you will disregard this entirely. The jury should take no intimations from the court as to the facts in the case, for you are the sole judges of those facts, and the court is only bound to instruct the jury as to the law applicable to a case so as to enable it to reach a sound and proper conclusion.”

These instructions on the part of the trial judge rendered, nugatory and harmless the force and effect of the preceding remark and cured the error, if any was made. This question was exhaustively treated in the case of Klinker v. Third Ave. R. R. Co., 26 App. Div. 322, which is similar to the case at bar. The amount of the verdict rendered by the jury also indicates that the defendant was not prejudiced.

MacLean and Leventbitt, JJ., concur.

Judgment affirmed, with costs to respondent.  