"I except," says the other
lawyer, "and I ask your Honor to charge the jury that if they believe
the cow was the property of the defendant, their verdict must be for
the plaintiff." "I refuse to charge in those words," says the judge,
"there may not have been any cow or he may not have eaten the
cabbages." Or the lawyer for the railway may ask the judge, "That if
the jury find that the driver was forty feet away from the tracks and
the car was a hundred feet away from the corner of Seventy-eighth
Street when he first saw the car, and the car was going at a rapid
rate and the conductor pulled the bell and the driver was sitting on
the right-hand side of the wagon and might have seen the car had the
car been one hundred feet below the corner, then in that event I ask
your Honor to instruct the jury that the plaintiff was guilty of
contributory negligence and cannot recover."
The question is undoubtedly a poser. The judge is evidently worried;
if he make a wrong guess and says "yes" or "no" at this juncture, the
appellate court may say: "Error, judgment reversed, new trial
ordered." What happens is that the judge takes a chance. The lawyer
says, "I refer you to 169 New York Court of Appeals Reports, page 492;
in the case of Jones _vs.
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