
    Charles Hammelmann, Respondent, v. Herman Bernhardt and Herbert R. Bernhardt, by William H. Love, His Guardian ad Litem, Appellants.
    Fourth Department,
    July 12, 1910.
    Trial — charge, when presumed to be prejudicial — witness — credibility — false testimony as to material facts. ,
    Where the verdict in an action to recover for negligence can only be based upon a most careful examination of conflicting testimony, an erroneous instruction as to the credibility of witnesses is presumedly prejudicial.
    The jury may entirely, disregard the testimony of a witness who' has testified falsely as to material facts only when he did so willfully, intentionally or knowingly.
    -Appeal by the defendants, Herman Bernhardt and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 8tli day of October, 1909, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 9th day of October, 1909, denying the defendants’ motion for a new trial made upon the minutes.
    
      Frank Gibbons, for the appellants.
    
      II. H. Bacon, for the respondent.
   Robson, J.:

On July 1, 1908, an automobile operated by defendants collided with plaintiff, a pedestrian on one of the public streets of the city of Buffalo, and plaintiff was severely injured. The manner in which the in jury occurred and whether plaintiff or defendants were responsible for it, were sharply contested; and a Verdict either for plaintiff or defendants would not be open to objection as against the weight of evidence. Plaintiff’s version of the facts and that given by defendants differed radically; and defendants’ responsibility for the accident could be found by the jury only upon the most careful examination of the conflicting testimony of witnesses as to facts within their personal observation at the time the collision occurred. The question of the credibility of the different witnesses being thus sharply presented for the jury to pass upon, if erroneous instructions were given as to the principles and rules they should, or were permitted to, apply in testing the truth of the testimony of the witnesses, such error was presumably prejudicial to the defeated party, and, if presented for review by proper exception, supply sufficient ground for reversal of the judgment following the verdict thus obtained.

The court in charging the jury said : “ If you find that any of these witnesses have testified falsely upon a material fact in the case you have a right to disregard their evidence entirely.” This statement, taken with what immediately preceded, would warrant the jury in inferring that it was especially directed to the testimony of one of the defendants. At the close of the charge defendants’ counsel said : “ I desire to except to that portion of your Honor’s charge where you instruct the jury that, if they find that any witness testified falsely in one respect, that they must disregard his whole testimony.” The Court: “ That is not the statement the Court made. The Court’s statement was that, if he testified falsely as'to a material fact in the case, that they had a right to disregard his entire evidence.” Defendants’ counsel: “ That is what I desire an exception to.” The Court: “Your statement did not cover that.”' Counsel : “ I desire an exception as your Honor now stated it and as you stated it in your original charge, if it was any different.” The-Court: “ Yes.” We have quoted thus at large from the record because respondent’s counsel urges that the exception taken “ was too vague and indefinite to avail the defendants.” It is difficult to see how the attention of the court could be called more pointedly to the exact part of the charge to which exception was taken. Evidently, it was clearly understood both .by the court and counsel. The charge, as made and repeated when defendants’ counsel attempted to except thereto, omitted the very material and essential part of the rule that the jury may entirely disregard the testimony of a witness, who has testified falsely to a material fact, only when such witness has so testified willfully, intentionally or knowingly. (Tucker v. Dudley, 127 App. Div. 403.) This court has had .occasion so recently to reverse a judgment because of a similar error in the charge of the trial court that it is not profitable to restate further the views expressed in the opinion then delivered. (Cullen v. Battle Island Paper Co., 128 App. Div. 369.)

All concurred.

Judgment and order reversed and new trial ordered, with costs to appellants to abide event. •  