Tisdale v. Delaware & Hudson Canal Co.

• Decision Date: 29 October 1889
• Citation: 22 N.E. 700,116 N.Y. 416
• Court: New York Court of Appeals Court of Appeals
• Parties: TISDALE v. DELAWARE & HUDSON CANAL CO.

116 N.Y. 416

22 N.E. 700

TISDALE

v.DELAWARE & HUDSON CANAL CO.¹

Court of Appeals of New York, Second Division.

Oct. 29, 1889.

Appeal from supreme court, general term, third department.

Action for personal injuries, brought by Anna S. Tisdale against the Delaware & Hudson Canal Company. The plaintiff alleged in her complaint that in October, 1883, the defendant, a railroad corporation, operated a railroad passing over a bridge at Fort Edward, N. Y.; that on the 22d of that month said bridge, through the negligence of the defendant, gave way as a train of its cars was passing over; that said train was thereby wrecked, and the plaintiff, a passenger thereon, was thrown therewith about 30 feet into the bed of the feeder below, and permanently injured. The defendant, by its verified answer, denied any knowledge or information sufficient to form a belief as to the following allegations of the complaint: ‘That plaintiff was a passenger on the cars of defendant October 22, 1883, or at any other time; that plaintiff was injured in the accident at Fort Edward, October 22, 1883, or at any other time or place; that plaintiff was injured for life, suffered pain or anguish, or had her clothing damaged; that she has been put to expense, or will be, to cure herself of said alleged injuries.’ The defendant further denied, upon information and belief, ‘that it had been guilty of any carelessness or negligence in failing to build or maintain a bridge in a good and safe condition, and of strength sufficient to enable its cars and locomotives to pass over the same in safety, at Fort Edward, or elsewhere, and in allowing the same to become or remain in an unsafe, insecure, or dilapidated, condition, or by reason of any act, omission, or thing whatsoever: * * * that it has been guilty of any carelessness, negligence, breach of duty, or violation of agreement with or towards this plaintiff, or that plaintiff has been injured or damaged in any sum by reason of any fault of theirs.’ Before the commencement of the trial, the defendant stipulated in writing that it would ‘admit its liability to plaintiff for damages in consequence of the fall of the railroad bridge over the feeder at Fort Edward; thus narrowing the issues in this case to the plaintiff's injury, and the amount of damages suffered by her.’ Judgment was rendered on verdict for the plaintiff, and defendant's motion for new trial was denied. The judgment and order were affirmed by the general term, and defendant appeals.

E. L. Fursman, for appellant.

Amasa J. Parker, for respondent.

VANN, J., ( after stating the facts substantially as above.)

Upon the trial of this action, the counsel for the plaintiff, while addressing the jury after the close of the evidence, was reading a portion of the answer, when the counsel for the defendant objected upon the ground that it was not in evidence,and was inadmissible and immaterial under the stipulation in the case. The court overruled the objection, and gave the defendant an exception. The plaintiff's counsel thereupon, by permission of the court, continued to read the answer, or portions thereof, to the jury, and also made comments upon it; the defendant duly excepting. The record before us does not disclose the nature of the comments made by counsel upon the answer, and, for aught that appears, they may have been moderate, fair, and harmless.

The object of pleadings is to define the issue between the parties; and, when an issue of fact is tried before a jury, they cannot appreciate the evidence as it is given, unless they know the nature of the issues to be decided. Hence it is customary and proper for counsel, in opening, to tell the jury what the issues are, as well as what they expect to prove. In some states the case is ordinarily opened by reading the pleadings. 1 Thomp. Trials, § 260. The pleadings are before the court, nor as evidence, but to point out the object to which evidence is to be directed. While a party sometimes formally reads in evidence the pleading of his adversary, or some part thereof containing a distinct and unconditional admission, no legal advantage is gained thereby, as the admissions, properly so called, contained in an adverse pleading admit of no controversy, and require no proof. Paige v. Willet, 38 N. Y. 28;White v. Smith, 46 N. Y. 418;Cook v. Barr, 44 N. Y. 156, 158;Fleischmann v. Stern, 90 N. Y. 110, 114;Dunham v. Cudlipp, 94 N. Y. 129, 133; Code Civil Proc. § 522. It is the duty of the court, in charging the jury, to state the issues of fact raised by the pleadings. While this is commonly done in a summary way, by stating the precise questions of fact to be decided, no reason is perceived why it may not be done by reading and analyzing the pleadings, when they are not complicated, and thus pointing out the issues, and the position of the respective parties. It is evident,...