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The Court's Charge.


to aid you in determining which story is the more reasonable one, the more probable, which one you are going to believe. Those are the important things in this case.

The officer was there. He was directing traffic. He tells you, and the defendant tells you, that this man was coming in a southerly direction. The plaintiff may have told you something to the contrary, that traffic was stopped. Take into account what he said, because it is your recollection which must serve you, not mine. I do not recall all of the testimony, and I make no claim to remembering it all. I have not attempted, in this charge, to tell you all of the testimony. I merely have pointed out sufficient so as to aid you in understanding the law, and in applying the law to the facts in the case. After I have concluded my charge forget all that I have said about the facts; you are the sole judges of the facts. You are to have in mind all of the proof, everything that has developed in this case, for the purpose of determining what the facts are. The operator of an automobile must be watchful because he knows that people may cross, especially at intersections. But at the same time, where there is a traffic officer for the purpose of guarding and protecting everybody, if the police officer beckoned him to come on, as he says—I don't know whether that is true or not—then he had a right to assume that he had the right of way.

One of the main things in dispute between the plaintiff and the defendant is as to the place where the defendant's car struck the plaintiff. The plaintiff tells you that it was the front of the car. If that is so, then the story told you by the defendant is not correct. The defendant tells you


The Court's Charge.


that that is not so, that he never saw this man in front of his car at any time. That he was driving upon the car tracks, and this man was two or three feet from the car tracks. He was not called upon to stop his car because people were standing in the center of the street. There are safety zones set up at certain street corners where passengers may alight or board cars, a narrow space between the rails and traffic. Whether that was the situation here or not I do not know. You and I have observed on many occasions people attempting to cross busy traffic go to the center of the street and wait there until an oppor- 368 tunity permits them to proceed further across the street. The defendant tells you that this man and two women were standing there. Nobody else was hurt but the plaintiff. That could happen without any negligence and it could happen as a result of negligence. But the fact is, nevertheless, that he alone was struck. He was re uired to use the same degree of care and caution that you would use if you were operating a car on Third Avenue and 14th Street at 10.50 or 11 o'clock on the morning of August 1st, 1927. It was a clear day. This man could see ahead of him as he drove along the track. The plaintiff says the defendant struck him with the front of his automobile. The defendant admits that he 369 proceeded along for 20 or 30 feet. That of itself does not mean anything, or that he was going at a fast rate of speed. He says he was unaware of the fact that anybody had been struck, but that the officer put up his hand and he stopped his car immediately. The officer does not say that is not so, the officer does not say it is so, he merely says he does not remember. The defendant says he backed up his car some 20 feet to where the body of this man lay unconscious.


The Court's Charge.


We wish there were a number of witnesses here who could graphically detail all of the facts in this case.

But they are not here. The plaintiff did not produce any witness because he was unconscious. It may be that some people gave their names to the officer. We can understand the position of the defendant. If what the defendant says is true, that he was proceeding across the street, was suddenly stopped, and the officer pointed to him a man lying upon the ground, that he looked and saw the man, backed up his car, and saw that he was unconscious, then he cannot be held responsible for this accident. He was anxious to bring the man to a hospital because he may have been in serious danger of death. How each man would act in an emergency nobody can tell, no two of us would act alike. But you must try and place yourselves in the position of Mr. Bonanno. He tells you that he did not attempt to get the names of anybody. That a man named Quinn gave him his name. What Quinn said to him was not developed in this case. Whether he gave his correct name and address or a fictitious name and address nobody knows, but we do know that nobody has been able to secure him here. Mr. Bonanno says, “I was in a hurry to get this man to the hospital,” and the officer said it was done in a hurry. No names appear on the police blotter except the name of this man Quinn. We do not know how the officer obtained it. But they did go to the hospital as quickly as they could, and the defendant says they arrived there three or four minutes afterwards, and that the plaintiff had regained consciousness. It may be a matter of some importance, it may be a matter of no importance. The defendant tells you one thing. He may be right and he may be wrong. Did he at


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The Court's Charge.



tempt to deliberately mislead you? At that time the accident had already happened; everything was over; his responsibility was fixed; he was either liable at that time or he was not liable; what happened afterwards has no direct bearing upon his responsibility in this case. Anyhow, he tells you that he went with Officer Eckardt to the station house, that he made out this report that he was called upon to make out. He says he made it out in the presence of two officers, Carney and Eckardt, wrote out the whole thing just as it appears here. He writes out his story. Not a complete and detailed story such as has been developed here, because you would not write out such a detailed report yourself, nobody in the world could do it if he wanted to do it, that is only developed as a result of questioning. But he tells you the story of what occurred at that time, and you can read it as he put it down at that particular time. He says the two officers were there. At that particular time he had already secured Eckardt's name, his shield number, the traffic squad that he belonged to. He went with Eckardt at the particular time, and Eckardt jotted down in his book some things, and the defendant tells you all of the things which he says occurred at that time which Eckardt says he does not remember now. Was he attempting to deliberately deceive you? Evidently he had not seen Eckardt before he came to court on that day, nobody had spoken to Eckardt, nobody knew what he was going to testify to, but Bonanno tells you these things before Eckardt appeared, depending, I assume, upon the assumption that this man was going to corroborate him. There is no claim on the part of the officer that Bonanno misrepresented or misstated; the claim on the part of the

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officer is that time has elapsed to that extent that he does not recall. I mention these things so you may have a picture in your mind of this whole situation. I do not know who is right or who is wrong. I would be the last man to do the plaintiff an injustice, if he has established his case then your highest duty is to give him a verdict, that is fair and just, and if he has not, then you may not, by reason of any outside considerations, sympathy, sentiment, bias, or prejudice against either, or in favor of either of the parties to this

suit, render a verdict. You are here to find out 377 whether the plaintiff has established his case by a

fair preponderance of the evidence that the accident occurred solely through negligence on the part of the defendant and without any negligence upon the part of the plaintiff contributing thereto.

If the plaintiff has established these things then he is entitled to a verdict. He sues to recover $20,000. There is no limit that the law puts upon any man 'when he sues. He may have sued to recover a large sum, he may have sued to recover a small sum. It is for you to give him the sum which you think fits the situation. He fixes his damages at $20,000. That is the limit of his re

covery. If he is entitled to a verdict he is en378

titled to recover no more than he sues for, but any part of the amount that he sues for, such sum, as in the estimation of you gentlemen, will be fair compensation to him for his pain, suffering and injury, all of the damage which came to him as a result of the accident from that day to the present time, and which may continue in the future, such sum as he lost by way of earnings, such sum as he was reasonably called upon to expend in his treatment and his cure.

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