Opinion
March, 1907.
William E. Weaver, for appellant.
Headley M. Greene, for respondent.
Defendant appeals from a judgment for $301.50 in favor of the plaintiff, entered upon the verdict of a jury. The judgment should be reversed because of erroneous instructions to the jury contained in the charge of the learned justice presiding. In explaining the rule of damages to be applied in the case, the court said: "A good many jurors do put themselves right in his place and say: What under the circumstances would I want for injuries and sufferings of that kind." Proper exception was then taken to this part of the charge, and the court thereupon added: "Not what they would take, what they would want." Exception was also taken to this statement. This error was doubtless prejudicial. Stantial v. Union R. Co., 52 Misc. 653; Schmidt v. Interborough R.T. Co., 49 id. 255; Rhodes v. Union R. Co., 52 id. 501.
Present: GILDERSLEEVE, DAVIS and HENDRICK, JJ.
Judgment reversed and new trial ordered, with costs to appellant to abide event.