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extraction. But it doesn't make any difference
where they were born. One is an illiterate man,
maybe ignorant, I don't know, the other is an
educated man. That counts for nothing. We
want to find out, not the wealth nor the intelli-
gence of the plaintiff or defendant, but the char-
acter of the man. And the character of the poor
man, the illiterate man, may be just as fine as
the character of the richest and the most intel-
ligent man, just the same as the character of the
richest and most intelligent man may be just as
fine and just as noble as that of a man who has
not his wealth or his intelligence. Those things
play no part in this case. We are not concerned
with their standing in life, we are not concerned
with their wealth, we are only concerned with
one thing-justice, honesty, truth, fair play.
Each of these men, when he presents himself in
this court, is entitled to receive those things, and
when a jury departs from them, or any of them,
and by other means and other methods, through
outside considerations, renders a verdict that is
not in accordance with justice, truth, honesty and
fair play, then they are depriving one of the
parties of his rights, of the things to which he
is entitled, and no jury is going to indulge in
that. You are going to deal with these men as
you would want to be dealt with yourselves if
you were a plaintiff or a defendant. The two
main witnesses to this accident are the plaintiff
and the defendant. They are both equally vitally
interested witnesses. And they tell you stories
which do not agree. Which one is telling the
truth is for you to say. You must have in mind
that most accidents happen very quickly, a num-
ber of years elapse before the case comes to trial,
and in the meantime the parties are considering

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in their minds, maybe discussing with their friends, what occurred upon the particular occasion, until each one has developed a mental picture of what transpired, which he believes to be the truth. Ofttimes in these negligence cases witnesses will vary on details—and we expect them to vary. No two men on this jury could agree upon what was testified to by any of the witnesses here. Upon the main, the important things, you would be in agreement, and upon the minor things you might not be in agreement. Some of you will remember one thing and others will remember another thing. But here nearly 338 four years have elapsed. These men come here and each one tells you a story which to some extent does not fit the story told by the others. And it is for you to say, in light of the surrounding circumstances—and this situation has been pictured to you very graphically—which story is the reasonable story. If you are uncertain as to whether the plaintiff has made out his case, or if the proof sustains the claim of the defendant, of course he has not made out his case. But if the story is believed by you, if it seems to you to be a probable story, and the surrounding circumstances and the physical facts sustain it, then you would be inclined to believe him, and then,

339 after you have done that, you are to find out whether he meets the requirements of the law. There is one other man who comes into this court, and that is the police officer, Eckardt. You and I can understand that a man who stands at a corner such as he stood, at 14th Street and Third Avenue, where two of the main arteries of the Borough of Manhattan cross, with all the traffic, and all the congestion, vehicles of all kinds, pedestrians in large numbers, busy hours

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of the day and busy hours of the night, standing at the intersection at one time at one place and at another time at another place, that he comes here nearly four years after, without any notification in advance, and is asked to cull from his memory what transpired upon such an occasion. We can understand that a police officer with the same character of work probably all the time, where he is under a certain amount of tension and nervous strain, where maybe many accidents occur, that he cannot keep these things in mind, and nobody is claiming that because he does not remember that he is not trying to tell the truth. But we are here to have in mind the things that he does tell you, the things which you believe to be true that he tells you, what bearing they have upon this situation. And what he tells you is of the most vital importance. There was an intimation, as I recall it, in the opening statement of counsel for the plaintiff, that there was a police blotter signed by Officer Carney, and that Officer Carney was not there, and that no police officer was there. I believe there was some such insinuation. Officer Carney did appear and he did say that he was not there because he was not the traffic officer at that place, and in fact never saw this accident. And he comes and frankly tells you that. The evidence that he gives is of no consequence except indirectly as it may or may not tend to support and corroborate the story told by the defendant. But there is an intimation that there was no officer there. And you will recall that for a long period of time there was a lull in the trial of this case so that we could ascertain—for that was the sole purpose of it—the name of the officer and the location of the officer whom the defendant claimed

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very little.

344

was present at that time. And then finally, after dint of effort—although that may not appear in

the record except indirectly—because of this intimation that was given to you during the trial, on Friday morning we secured the presence of the officer in court here. The officer then recalled

He did not remember whether he was there at that time, although he did recall that he was a traffic officer at that place. And then I called for an adjournment to make sure of one thing—since the officer could not recall, and he had made the notation in his notebookto ascertain beyond cavil, beyond all dispute, that he was present at the time of this accident, because, to my way of thinking, that was one of the important things in this case, his presence as an officer on duty at the place of the accident. The importance of it may not immediately appear to you, and the significance that is attached to it, you are to determine. He comes here. What transpired in the hall with this man, who

, is an investigator, I know nothing about. Whether it has any significance or no significance I am not here to say, and I am not here to judge. Customarily men are not served who are waiting in the court house, or near the court room, to be called as witnesses. It may be that this man, as a result of overzealousness, or overanxiety, was going to serve him, or did serve him, with a subpoena. What the effect is I do not know nor do I care. If it has any importance, give it the importance that you attach to it, give it the weight that you think it is entitled to. If it creates suspicion, if it creates doubt, or misgivings as to this man, then permit them to play their part in your verdict in this case, and if it is merely incidental, and is explained, as counsel

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for the plaintiff attempts to explain it, then you will dismiss the thing from your minds. But Officer Eckardt does recall that he was there. He does not recall any of the features of the case, whether he saw this or whether he did not see it. We can understand that he may be perfectly honest in that statement. There was another man whose name was taken, presumably that of a witness. The defendant tells you that this man came and gave his name as Quinn. He is not present. You may not find fault with the defendant for his absence any more than you may find fault with the plaintiff for his absence. The investigator for plaintiff's counsel tells you that he attempted on three different occasions to subpoena him, and could not ascertain anything about him. Whether if he did appear he could testify to anything, whether his testimony would favor the plaintiff or favor the defendant, nobody knows, and we may not conjecture about it, for all we may take is the proof that has been developed out of the mouths of the witnesses here, and no other proof. You may draw reasonable inferences from the proof, you may have in mind the surrounding circumstances, and the physical facts, but you may not supply proof, or you may not criticize the absence of proof, you must take what we have. We always find in every case a certain kind of testimony that we wish was here that is not here, but we must take the little that we have and find out just what the situation is.

What is the plaintiff called upon to prove? He is called upon to prove the negligence of the defendant. The negligence claimed against the defendant is that he did not operate his car in a reasonably prudent way as he should have done

348