The evidence in this case is conflicting, and the jury rendered a verdict for the plaintiff.
This reversal is placed on an alleged error in the charge, which in my opinion was fully cured at the close thereof, and that the jury could not possible have been misled.
At the close of the main charge the counsel for the defendant submitted the following request:
"First, the plaintiff cannot recover unless she satisfies you by testimony of greater weight than that offered by the defendant that the accident happened by reason of a sudden starting of the car after it had come to a full stop in response to a signal or request given by her to the conductor." The trial judge refused so to charge.
A long colloquy then followed between the court and counsel for both parties and many requests to charge were submitted and ruled upon.
The counsel for the defendant then said: "Then there is just one that I want your Honor to charge, namely, that there is no alleged negligence of the defendant upon which a recovery can be based in this case except the sudden starting of the car after it came to a full stop." The court refused to charge this, and then said: "Let me see the complaint in regard to that last request." After inspecting the complaint the court said: "I will withdraw that refusal to charge, and I will charge as requested. That is the allegation of the complaint, and the plaintiff must sustain that allegation. I so charge."
The defendant's counsel then asked the court to charge the first request in the terms in which it was asked, and the trial judge replied, "No; except as already charged I refuse to charge it."
It was doubtless error for the trial judge at the outset to refuse to charge the first request, but the charge ultimately made, after inspecting the complaint, covered substantially the same ground and corrected the original error.
It seems to me as plain as language can make it that the *Page 389 original error was fully cured, and the jury about to retire must have understood the very narrow issue of fact which was submitted for their determination.
This plaintiff sustained most serious and permanent injuries, which wrecked her life as a singer and artist. The verdict is not excessive when the surrounding circumstances are considered. The case has been pending for a long time, and I regard the reversal of this judgment as unwarranted.
CULLEN, Ch. J., O'BRIEN, VANN and WERNER, JJ., concur with HAIGHT, J.; BARTLETT, J., reads dissenting memorandum; GRAY, J., not sitting.
Judgment reversed, etc.