M. M. Brennan-For Pl’ff-Redirect-Recross. The Court: What do you mean by an investigator? The Witness: To go out to investigate an accident, to get facts and report the same, and if possible get signed statement, get cases ready for court, and serve witnesses with subpoenas. The Court: You work for Mr. Abruzzo alone? The Witness: That is all. The Court: You investigate his negligence cases? The Witness: Yes, sir. 320 Q. You were assigned to this case at my request? A. Yes, sir. Q. Am I associated with Mr. Abruzzo? A. Yes, sir. Q. Did you subpoena the other witnesses in this case? A. I subpoenaed the doctors and I subpoenaed Officer Carney. By Mr. Carson. Q. Did you know that the official police blotter report in this matter made reference to a witness by the name of Quinn? Mr. Ruggieri: Objected to, the report 321 speaks for itself. The Court: Objection sustained. . Q. Did you attempt to serve a subpoena on a party named Quinn? A. I did. Q. Did you ever reach a party by the name of Quinn? A. I did not. Q. Where did you go find him? A. Over at East 24th Street. 322 Matthew M. Brennan-For Plaintiff-Recross. Motion to Dismiss. 11 Q. Was that the address given from your investigation? A. That was the address as I saw on the police blotter. Q. When did you go there? A. I went there three times within the last week. Q. Did you see a large number of people in the building? A. There was. I inquired there and I could get no information as to his whereabouts, when he was seen, or anything else. Q. You didn't find him, or you didn't find out where you could find him? A. I tried to find out 323 where he could be located. Q. Did you find out where he could be located ? A. No, I did not. Mr. Carson: Defendant rests. I renew the motions on the ground that no negligence has been shown against the defendant, and the plaintiff has failed to prove a cause of action against the defendant, and on all the grounds heretofore stated. The Court: Motion denied. 324 Mr. Carson sums up to jury for defendant. Mr. Ruggieri sums up to jury for plaintiff. The Court's Charge. 325 MAY, J.: Mr. Foreman and Gentlemen of the Jury: It was most unfortunate that you gentlemen were compelled to return here this week, but that is only in line with your duty, and you have indicated by your patience and your attention here a desire to do your whole duty by both of these parties. I am sure that you are going to be actuated solely by a sense of justice, by a sense of fair play, and that you are not going to pay attention to any outside considerations. To us who sit upon the Bench it is very interesting, sometimes it is fascinating, when young lawyers 326 plead for their client's cause, how earnest and enthusiastic they become, how little they can see of the other side of the case, and how important and outstanding are the features which they emphasize, which indicate to each one that he is right. It is proper that each counsel should bring to your attention the phases of the case which aid him, to magnify, if necessary, those phases of the case, and to minimize the phases of the case which tend to defeat him. He is doing his duty. He is earnest, and he is sincere, because he sees and he hears only his own side of the case; he does not recognize the strength, he does not recognize the importance of his op- 327 ponent's side of the case. But after all is said and done, we care little about what counsel have said. You can have the same set of facts, about which there can be no dispute, and you will have one lawyer argue one side upon the facts that are agreed upon, and draw conclusions entirely different from the conclusions drawn by the lawyer on the other side. If counsel for the defendant had an opportunity to answer counsel 328 The Court's Charge. 329 for the plaintiff he probably could answer all of the points that he made, and again if counsel for the plaintiff attempted to answer counsel for the defendant he could answer his arguments. What we are concerned with is what is the truth. What are the main features, the important features of this case, which indicate where the truth lies? After we have determined that, we are not concerned with any other consideration. In every case of necessity there develop in the trial of a case many things which have only the slightest bearing upon the case, and yet which are necessary to develop before a jury, so that they can have a complete picture of what it is claimed occurred at that time. Were only the important features of the case developed before you, you would have an incomplete picture, you would not thoroughly understand and comprehend. So they develop here many things which are either of no importance, or of slight importance, or of some importance. And they aid in the picture, in building it up. But it is the outstanding, the important features of the case which I believe are going to be the controlling features in this case, as in every one of these negligence cases. It is the right of counsel, in selecting a jury, to ask them whether they have any relationship with an insurance company. From that ofttimes jurors gather the notion that there is an insurance company involved. We know nothing of insurance companies in this case. This is a case between Porrazzo and Bonanno, and if Porrazzo is right he should recover, and if he is wrong he should not recover. If this defendant did him harm, through negligence, and the negligence was solely on his part, then Bonanno should respond 330 The Court's Charge. 331 in damages-not a compromise verdict, not merely balm for his wounded feelings, but a substantial verdict, because this man was seriously injured. You must have in mind that this plaintiff brings an action against the defendant, the defendant does not bring any action against the plaintiff. And the law properly says to the plaintiff, “You brought the action, you made the charge against the defendant, you are called upon to prove the charge.” It never says to the defendant that he is called upon to prove anything. The defendant could rest upon the plain- 332 tiff's case and not introduce any proof, relying upon the weakness of the plaintiff's case, or his failure of proof. He has the right, as he has done in this case, to introduce proof. And when he introduces proof, it is for you to say, upon all of the evidence that has been introduced here, whether the plaintiff has satisfied you by what we call a fair preponderance of the evidence, that the accident happened in the way in which he says it happened. Preponderance does not mean the number of witnesses, it means the quality of the proof, the character of the witnesses, the reasonableness of the stories, the probabilities of the situation, the surrounding circumstances, and 333 the physical facts which when brought to bear upon the proof in the case will aid you in determining what you believe to have been the situation which existed at that time. : In this case we have really but two witnesses. In a sense we have another witness who may be the vital and all-controlling factor in this action. That is entirely a matter for you. These two witnesses are the plaintiff and defendant, one of them born in Italy and the other maybe of Italian |
