Opinion
January 28, 1926.
Appeal from the Municipal Court, Borough of Manhattan, Second District.
Kevie Frankel, for the appellant.
Pettigrew, Glenney Bovard [ L.C. Stryker of counsel], for the respondent.
The comment of the court with reference to the accuracy of distances as represented by the photographs was tantamount to an instruction to the jury to find for the defendant. It is a matter of almost common knowledge that photographs may be taken from different angles so as to exaggerate certain distances, or, on the other hand, to make space more compact, but notwithstanding this the judge instructed the jury that photographs cannot exaggerate. Again, the trial judge in his charge, after having stated to the jury that "photographs cannot lie," stated that if the photograph is to be believed the accident could not have happened without the contributory negligence of plaintiff. A fair trial must always be insisted upon. The general tenor of the charge is one of antagonism to plaintiff's cause.
Judgment reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.
All concur; present, GUY, WAGNER and LYDON, JJ.