The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-07-28
Common Pleas-Gcneral rerr

Jr,y 27-DrcrsIoNs- Ihrenter run.
the Hudson Riuer Raitroad-(By JnS~" Wood ID.
The charge to the jury IN .6s case APPEARS %sS
uence or at least in it's tend that ~ ,s nI
think the evidence warrant I'd recorsru nn%sr
correct instruction from the court the ndcmant
ought not 10 oe d, The CHARGE was in effect
Sent he was entt all he could to avoid the acct
a!hGngn une aep ladants did everything which it was
wthn human ability and skill to do they are never
s ia" that is to say, if neither party was in
nnonda' e asntif is entitled to Even ifthe
"ns IL mad not sufficient power to stop" they
wsie oound to stop at their peril. The question
Whe,ther the defendants were guilty of negligence
was as material as whether the plaintiff was, and
tnat should have been made the primary question in
soead OF reversing the order and telling the jury that
u the plaintiff was not guilty Of negligence, sthey
| must assume that the defendant was Suppose the
case was reversed, and the collision had resulted in
an injury to the defendants car and horses and they
had sued, would it have been proper to charge the
yary that 1t the defendants did their best to avoid
the collision, the plaintiff was bound to get
his cart of the track at his peril? 1t
is true that there was no exception in form
taken to this part of the charge, but it seems
to me that ought not to suffer such instruction
TO pass If there are any grounds upon which we can
reverse consistently with established precedent And
this. think is found in the refusal Of the judge to
charge the jury that the defendants had right to
travel on the track on the left hand side of the road
BY the Justices amended return it appears that he
defendants counsel excepted. The jury WERE there
fore, left to infer from such refusal that the running
on the left hand track itself fault the part
OF the defendants, and subjected them to damages
think this judgment must be reversed.
Lon ghurst, appellant, cS. The Ne,c York and New
Hauem Railroad Company.-(By Judge Daly.)-
The title to real estate did not come in question, and
the justice should have tried the action. The an
swer set up that the Harlem Railroad Cmpany be-
ing possessed of tract of land in the centre Of the
Fourth avenue. between ll5th and 125th streets,
twentyfo feet in width, granted the defendants
permission to run their engine and cars over rail
way laid down on the said track, and that the
cows being unlawfully upon said track, were killed
ming upon said track. This involved no inquiry as
to title. Whether it constituted any defence not
it was simply setting up possession in the centre Of
the street, in that part of it upon which the rail-
way was laid. Title is defined by Blackstone to be
the means whereby the owner of lands hath the just
possession OF his property, q Com, 1869 and does
not come in question when the only matter in dis
pute is the fact Of possession. Hence, where the
! thing in controversy between the parties is the
mere possession, or priority of possession, it
Treatise 49, 10 and 20.) Mr. Justice Cowen suggests
in his treatise that the title comes in question in an
action Of trespass, where the plaintiffs possession is
denied and litigated by the defendants but we have
have held the contrary in Brady against Mulligan
and wife, May term, 1858.
Br0u1t respondent, rS. Br0,Cn dppeLant.--(By
Judge Woodbury. I'm an.action in the Marine Court
If one ofthe parties show, by proper adavit that
of the Judges of that court is material witness
for him. the cause should be tried by of the other
Judges. Judgment affirmed with costs.
Mary Ann Nc Dougal Us. Isaac Ne,cton.-Judg-
ment reversed with costs.
C. R. Scheuer vs. James B. Overtom.-Judgment
O,cem OConor vs. Richard acknowledgement
affirmed with costs.