Epstein v. Cohen

Untermyer, J.

(dissenting). Although the mere occurrence of the accident under the circumstances to which the plaintiff testified did not necessarily raise an inference of negligence (Galbraith v. Busch, 267 N. Y. 230), the defendant’s admissions, to which the plaintiff also testified, supplied that element. It was error for the court to refuse to charge in effect that in determining the weight to be given to the plaintiff’s testimony the jury might take into consideration that the defendant, although present in court, had failed to testify in contradiction. (Schwier v. New York Central & H. R. R. R. Co., 90 N. Y. 558; Milio v. Railway Motor Trucking Co., 257 App. Div. 641; Perlman v. Shanck, 192 id. 179.) It was also error to refuse to charge that in determining the question of the defendant’s negligence the jury might consider the admissions made by the defendant after the accident.

The judgment should be reversed, and a new trial ordered.

Cohn, J., concurs.

Judgment affirmed, with costs.