
    Ann Cranston, adm’x, Resp’t, v. New York Central and Hudson River R. R. Co., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed December 17, 1886.)
    
    Trial—Jury—Instructions to—When ground for new trial.
    Where in an action for damages resulting from the death of intestate, on the trial after, the jury had retired to consider their verdict, they came into court and one of them stated that there was no possibility of their agreeing. To which the court replied: -‘I can’t take any such statement as that, gentlemen; you must get together upon a matter of this kind.” and then added. ‘‘No juror ought to remain entirely firm in his own conviction one way or the other, until he has made up his mind beyond all question that he is necess rily right and the others are necessarily wrong.” Held, error that if the evidence was so clear as to lead to a conclusion with the degree of certainty required by the charge, there was nothing to submit to the jury, and it was the duty of the court either to direct a verdict or to non-suit the plaintiff.
    Appeal from a judgment of the supreme court, general term, third department, affirming a judgment of the Rensselaer circuit awarding the plaintiff $5,000 damages for the alleged negligent killing of David Cranston at a railroad crossing in the city of Troy.
    
      E. L. Fursman, for app’lt; B. A. Parmenter, for resp’t.
    
      
       Reversing 39 Hun, 308.
    
   Rapallo, J.

It is a serious question whether the uncontroverted evidence did not disclose a want of the care and caution which the law required of the plaintiff’s intestate in approaching so dangerous a crossing as that at which he lost his life, and whether a non-suit should not therefore have been ordered; but we need not discuss that question, as the case contains an exception which we are all agreed is well taken, and requires a reversal of the judgment and a new trial. After the jury had retired to consider their verdict, they came into court, and one of them stated that there was no probability of their agreeing. To this the court replied as follows: “I can’t take any such statement as that. Gentlemen, you-must get together upon a matter of this kind.” He then added: “No juror ought to remain entirely firm in his own conviction one way or another, until he has made up his mind beyond all question that he is necessarily right, and the others are necessarily wrong.” To this statement the defendant’s counsel excepted. The jury thereupon brought in a verdict for the plaintiff.

We are of the opinion that.the instruction excepted to was not a correct statement of the law. It was incumbent upon the party holding the affirmative of the issue, who in this case was the plaintiff, to satisfy the jury by a preponderance of evidence of the facts upon which her right to recover depended. If she failed to do so, the defendant was entitled to a verdict. The jurors who were not satisfied by the evidence of the truth of the plaintiff’s allegations were justified in refusing, for that reason, to find a verdict in her favor, although they might not have made up their minds, beyond all question, that they were necessarily right, and that those who were in favor of finding a verdict for the plaintiff were necessarily wrong. To sustain this instruction would be to cast upon the defendant, in a civil action, a burden quite as heavy as that which rests upon the prosecution in a criminal case, and perhaps still more onerous. If the evidence was so clear as to lead to a conclusion with the degree of certainty required by the charge, there was nothing to submit to the jury, and it was the duty of the court, either to direct a verdict, or to non-suit the plaintiff.

The judgment should be reversed, and a new trial ordered, costs to abide the event.

All concur.  