I am unable to concur with Mr. Justice Hatch in so far as he finds it necessary to reverse the judgment in this action upon the charge of the learned trial court. It seems to me that we are in danger of refining the rules of law to the point of impracticability when we undertake to say that the charge of the trial court shall conform to the exactness which we have a right to expect in a text writer, where there is not the remotest probability that the party appealing has suffered by reason of the error alleged.
The action is one for damages sustained by the plaintiff’s intestate by reason of the alleged negligence of the defendants, and the *69question arises upon the charge of the learned justice at Trial Term, who told the jury that “ you must find that the plaintiff has maintained the burden of proving every essential fact by the greater weight of evidence; that is, that the theory submitted to you for your adoption, upon the part of the plaintiff, is more probable than the theory advanced upon the part of the defendants. So, if you reach that conclusion that the plaintiff has maintained the burden of proof placed upon her by law, she has established her case by a greater weight of evidence. All that means is, that the theory presented to you' by the plaintiff must be more acceptable, more probable and more consistent with your experience than the theory advanced by the defendants. If it is not, she fails.”
It is true, of course, that, considered abstractly, this is not the law; the question is not whether this or that theory is the more probable, but whether the evidence supports one or the other of the theories presented. But a reading of the charge as made by the learned court shows clearly that the language was not used in the sense of limiting the burden of proof. Throughout the charge there is a consistent and sustained effort on the part of the court to impress uj>on the minds of the jurors that the plaintiff must sustain the burden of proof upon all of the essential facts necessary to constitute her cause of action. The jury were told: “ If the plaintiff has failed to establish by the greater weight of evidence these two propositions, then she cannot succeed in this action; ” that “ The plaintiff here having the burden of proof; ” that “ The burden is with the plaintiff upen that disputed question of fact, the same as it is on the other questions to which I have called your attention; ” that “ If you reach the conclusion that the plaintiff has failed to establish, by the greater weight of evidence, that this street was used,” etc. After the use of the language complained of, the court explained to the jury the theories of the controversy advanced by both parties, and continued: “ These are the contentions of the respective parties. It is for you to say which of the parties has maintained the truth of their respective contentions. The burden rests upon the plaintiff to establish her theory by the greater weight of evidence, and if you are in doubt as to which of those theories shall prevail, then your verdict would have to be for the defendants, for the reason that the law has placed the burden upon the plaintiff to establish her case by *70the greater weight of evidence. * * * It is jour duty to recall to your minds all the evidence in determining the rights of these parties. If you shall say that the plaintiff has maintained the burden which the law has cast upon her and to which I have called your attention, and that these different propositions have been established by the greater weight of evidence, then you come to the question of the amount of damages,” etc.
It can hardly be successfully maintained that the charge left any confusion in the minds of the jury upon the true rule of law applicable to this case. The learned court merely intended to call the attention of the jurors to the conflicting theories, and to say to them that it was their duty to determine from the evidence, in connection with their common experience, whether the plaintiff had sustained the burden of proving by the greater weight of evidence the truth of her theory. The court was addressing itself to the case then before the jury, in the light of the conflicting theories which the court was about to point out; and in view of the subsequent statement of the rule, it is inconsistent with reason to suppose that the appellants suffered any prejudice from the language used by the court, and I am of the opinion that it does not constitute reversible error. The cases relied upon in support of a reversal of this judgment, in my opinion, have gone as far as. it is practicable in the direction indicated'. In Whitlatch v. Fidelity & Casualty Co. (149 N. Y. 45, 49) the court suggests, that “ In a close case like this, where the evidence on both sides is largely circumstantial, it is of vital importance that the jury should be clearly instructed as to the burden of proof and the general principles of law governing their action.” In the case cited the court below had erroneously charged that the burden of proof was upon the defendant; “ that the defendant in this case, in order to defend it, is required to prove by a fair preponderance of evidence the fact that' James W. Whitlatoh did take his own life intentionally; in other words, that he committed deliberate suicide. I say that the defendant has the burden of proof.” The attention of the court was called to this error by an exception, and this was followed by a request to charge the law correctly ; which is a very different case from the one at bar, where the exception is merely to “ .that part of the charge iii which you stated in connection with the burden of proof resting on the plain*71tiff that it means it must appear to the jury to be more probable that the plaintiff’s contention is correct than that the defendants’ is.” The charge taken as a whole could not have left any doubt in the minds of the jury that the burden of proof was upon the plaintiff to establish her theory of the case ; that was clearly the spirit of the charge; the judgment is sustained by the evidence, and no right of the defendants was prejudiced by the language of the court.
In my opinion the judgment appealed from should be affirmed, though without approval of the suggestion that the rule of law is in any manner modified by the mixing up of the law and the facts of the particular case into which the trial court inadvertently strayed.
Judgment and order reversed and new trial granted, costs to abide the event.