The plaintiff has recovered á judgment for damages for assault and battery." His case is supported by his own evidence alone as to the occurrence, while the defendant’s denial is corroborated by three witnesses. These witnesses, however, are a brother, and a regular and an occasional employee of the defendant, and there is nothing in the circumstances and the surroundings of the transactions which requires interference by an appellate court with the-result reached by the jury. The law on the subject of a preponderance of evidence was carefully and accurately explained to the jury by the learned trial justice, and while the case fairly admitted a contrary conclusion, it was within the province of the jury to believe the plaintiff in preference to those who testified against him.
A physician sent by the defendant to examine the plaintiff with a view to ascertaining the extent of the injuries, testified fully to the results of his examination. A written report or memorandum of the examination furnished by the witness to the defendant was excluded when offered by defendant as evidence. In this there was no error. There Was no failure or exhaustion of memory, and no impeachment of the memorandum- on cross-examination, and the document was clearly incompetent as evidence in chief. (Russell v. Hudson *66River Railroad Co., 17 N. Y. 134; .People v. McLaughlin, 150 id. 365, 392.)
Nor was it error to exclude the question addressed to the plaintiff on cross-examination whether his recollection by reason of his condition was the same upon all answers made by him as upon a certain answer just made. The allowance or rejection of such a question, whether addressed to the. recollection or to the truthfulness of a witness, is within the sound discretion óf the trial court, and no case is cited in support of the proposition that a ruling similar to the one complained of constitutes reversible error.
The judgment and order should be affirmed.
Goodrich, P. J., Bartlett, Woodward and Hooker, JJ., concurred.
Judgment and order affirmed, with costs.