
    Morris J. Brockman, Respondent, v. The Metropolitan Street Railway Co., Appellant.
    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.
    Henry A. Robinson (John T. Little, of counsel), for appellant.
    Abraham Wielar (Jacob Marks, of counsel), for respondent.
   Per Curiam.

This is an action brought to recover damages for personal injuries alleged to have been caused by the negligence of 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.

Present: Beekman, P. J., Giegerich and O’Gorman, JJ.

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