
    BROCKMAN v. METROPOLITAN ST. RY. CO.
    (Supreme Court, Appellate Term.
    October 4, 1900.)
    Neqliqenoe—Contributory Negligence—Equally Balanced Evidence—Instructions.
    Where the evidence as to how the accident happened was conflicting, and the charge of the trial court did not cover the question of equally-balanced testimony, the refusal to instruct the jury “that if, upon the whole case, the evidence was equally balanced, either on the question of the defendant’s negligence or of the plaintiff's freedom from contributory-negligence, it must find for the defendant,” was erroneous.
    Appeal from municipal court, borough of Manhattan, Tenth district.
    Action by Morris J. Brockman against the Metropolitan StreetBailway Company. From a judgment in favor of plaintiff, defendant appeals.
    Beversed.
    Argued before BEEKMAN, P. J., and GIEGEBICH and O’GOB-MAH, JJ.
    Henry A. Bobinson (John T. Little, of counsel), for appellant.
    Abraham Wieler (Jacob Marks, of counsel), for respondent.
   PEB OUBIAM.

This is an action brought to recover damages fan personal injuries alleged to have been caused by the negligence off the defendant. The jury found a verdict in favor of the plaintiff,, and from the judgment entered thereon this appeal has been taken,. There was a clear-cut issue of fact between the parties with respect to the way in which the accident happened and who was responsible for it. The trial justice, at the close of his colloquial charge, was-requested by the counsel for the defendant to charge the following proposition: “That if upon the whole case the evidence is equally balanced, either upon the question of the defendant’s negligence- or of the plaintiff’s freedom from contributory negligence, it must find a verdict for the defendant.” This the court refused to do, and-the counsel for appellant duly excepted. The proposition embodied, in the request was a sound one, and should have been charged by the court. Its refusal to do so was error, for which the judgment must be reversed. It is idle to say that the court had elsewhere in. Its charge, in effect, covered this point. We have examined the charge with care, and find nothing in it which fairly supports any such claim. It was an instruction of importance, pointing out to the jury what must be the inevitable result if they should find the evidence to be evenly balanced, and we cannot say that their verdict was not affected by the refusal of the court to charge as requested. In view of the conclusion to which we have come upon this point, it is unnecessary for us to consider the other exceptions in the case which were discussed by counsel upon the appeal.

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