
    Adolf Garbaczewski, Respondent, v. The Third Avenue Railroad Company, Appellant.
    
      Negligence — when a refusal to malte a proper charge as to contributory negligence does not require a new tried — that the power of speech is affected, by an accident need not be pleaded.
    
    Upon the trial of an action brought to recover the damages resulting from injuries caused by the alleged negligence of the defendant, in the plaintiff’s being thrown from the rear platform of a street car by a jolt or lurch occasioned by a defectively-constructed curve, the defendant requested the court to charge the jury “if you believe that the swing or jolt, if any, to the car in making the turnout was not such as to throw a person on the rear platform, exercising reasonable care for his own safety, your verdict must be for the defendant.”
    The court replied, “I decline to so charge. That is a matter for the jury to determine from the facts of the case. Of course the duty rests upon the plaintiff of satisfying the jury by a fair preponderance of proof, as I have already stated, that he, himself, was free from any negligence contributing to the injury, and for the jury to determine whether or not he was guilty of such negligence, and they must determine it from all the evidence in the case, and not from one isolated fact.”
    Prior to this request the court had charged the jury fully and satisfactorily upon the question of contributory negligence.
    
      Held, that the request embodied a correct proposition of law, but that, as the court had charged the jury fully and fairly upon the question of contributory negligence, its refusal to charge the request in question was not, under the circumstances, a ground for a new trial;
    That the fact that the accident affected the power of speech of the plaintiff was an element of ordinary damage which did not call for a special • allegation in the pleading, although it might have been made a ground for a bill of particulars.
    Appeal by the defendant, The Third Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of June, 1895, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office on 16th day of July, 1895, denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought to recover damages resulting from personal injuries caused by the alleged negligence of the defendant.
    
      
      William N. Cohen, Edgar M. Johnson and Henry L. Scheuerman, for the appellant.
    
      Alfred Pagelow, for the respondent.
   Barrett, J.:

We are satisfied that this was a proper case for a jury. There was-sufficient evidence of the defendant’s negligence and of the plaintiff’s freedom therefrom. In fact, we have no doubt that the plaintiff was thrown from the defendant’s car in consequence of a jolt or lurch, occasioned by a defectively constructed curve. The plaintiff had no reason to look for this lurch. The car was an open one, and when the plaintiff got on he stood for a moment upon the rear platform getting his fare ready for the conductor, who was near by. It was at this moment that the jolt occurred which threw him upon the street.

There was a sharp conflict of testimony at this point. Some of the witnesses say that the plaintiff was standing on the edge of the platform and had both hands in his pockets. The plaintiff says that-he was in the middle and had but one hand in his pocket. The defendant’s witnesses say that the conductor shouted “ Hold fast.” Plaintiff says he did not hear it. Others testify that the plaintiff’s-breath smelt of liquor. Plaintiff says that he was sober, and so does-the man for whom he worked that morning. It is clear that the-question of contributory negligence could not properly have been taken from the jury. It was submitted to them under careful instructions, and the verdict which followed should not be lightly disturbed. We have gone over the learned trial judge’s charge and also his rulings upon the requests to charge, and we think that the case was in the main submitted to the jury clearly and correctly. The-only request which we think should have been charged was this: “ If you believe that the swing or jolt, if any, to the car in making the turnout was not such as to throw a person on the rear platform,, exercising reasonable care for his own safety, your verdict must be-for the defendant.”

With regard to this request the learned judge expressed himself as follows : “ I decline to so charge. That is a matter for the jury to determine from the facts of the case. Of course the duty rests-upon the plaintiff of satisfying the jury by a fair preponderance of proof, as I have already stated, that he, himself, was free from any negligence contributing to the injury, and for the jury to determine whether or not he was guilty of such negligence, and they must determine it from all the evidence in the case, and not from one isolated fact.”

To this ruling the defendant excepted. We think the proposition embodied in the request was correct. It was a concrete statement of the rule requiring reasonable care for self-protection, and it simply applied that rule to the precise danger at hand. Whether the danger was great or slight was a question for the jury. The jolt may have been great or slight, just as the jury looked at the testimony. The proposition left that question to them. It was only in case they should find that the jolt was not such as to throw a person off, who was exercising reasonable care for his own safety, that they were to find for the defendant.

It is quite evident, however, that in the haste of going over the defendant’s requests at the close of the case, the exact point of this carefully worded proposition was overlooked. This is apparent from the observations which we have quoted, made by the learned judge in response to the request.

If the request struck the learned trial judge as a proposition founded upon an isolated fact, and not upon a conclusion which the jury might properly reach from all the facts, it might well have struck twelve laymen in the same manner. We do not mean to say that the proposition is literally confusing. Read in cold type, with ample opportunity to analyze it, we find no difficulty in comprehending its meaning and purpose. We might, however, upon a casual examination, especially if our attention were not specifically called to the happy and adroit blending of the two postulates, treat the proposition as did the learned trial judge. We think that, after the full statement which the learned judge gave of his reasons for declining to charge as thus requested, it was the clear duty of counsel to explain the proposition and to point out the misconception which the learned judge’s observations suggested. We also think it .apparent that the defendant was not prejudiced by the declination, .and that the request, if charged, would not have varied the result. The learned judge had already charged the jury fully and satisfactorily upon the question of contributory negligence. He also went over the main facts and applied the proper rule thereto. Thus, the charge was not an abstraction, but a practical exposition of this crucial feature of the case. Nay, more; he was asked to and he did charge, that if the warning to ‘ hold fast' was uttered and heard by the plaintiff, within time enough for him to do it, that it was his duty to do it, and, failing to do it, he was guilty of contributory negligence.” He also charged that the plaintiff was. bound to show his freedom from contributory negligence by a preponderance of evidence. Thus, the jury must have had a clear idea, of their duty with regard to this question — a. much clearer idea-than they could possibly have derived from the subtly formulated proposition under consideration. We are satisfied that the reading of this proposition to the jury, at the time and under the circumstances disclosed by the record, would have conveyed nothing further to their minds than had already been instilled there by the colloquial charge. It would have impressed no new, independent or affirmative thought upon them, and they would still have had an adequate understanding of the doctrine of contributory negligence in all its beai'ings upon the case before them.

A verdict thus fairly obtained should not be set aside. There are no other exceptions which call for special consideration. There were some other requests which the defendant insists should have been charged. But we need not consider them as the main charge was correct and sufficient upon the points aimed at. It is only when the judge has not adequately covered all the ground in his colloquial charge that requests of this description are of real value. When the charge is adequate and covers every subject as to which it is proper to instruct the jury, the reading of such requests is useless and generally confusing. They then become a mere mental duel between the court and the counsel which should not be permitted to result in injury to the suitors.

There was no error in the admission or exclusion of evidence. The fact that the plaintiff was able to talk without hesitancy prior to the accident was proper for the consideration of the jury. If his speech was affected by the accident, that was an element of ordinary damage. It was not special damage, but an incident or detail of the injury. It may have called for a bill of particulars. But it did not call for a special plea.

Upon the whole, we see no reason for disturbing the verdict, and the judgment and order denying the motion for a new trial should accordingly be affirmed, with costs.

Van Brunt, P. J., Rumsey, O’Brien and Ingraham, JJ., concurred.

Judgment and order affirmed, with costs.  