Cairns v. Matthews ( 1946 )

In an action by plaintiffs, who are husband'and wife, to recover damages for personal injuries sustained by the wife, and for medical expenses incurred and loss of services sustained by the husband, resulting from the fall of a ceiling in an apartment rented by plaintiffs from the appellant, judgment reversed on law and a new trial granted, with costs to appellant to abide the event. It is our opinion that prejudicial error was committed by the court in charging, under the circumstances disclosed by the evidence, that the jury might take into consideration the failure of the appellant to call a witness, in the refusal to charge as requested by the appellant, and in connection with the instructions given to the jury at folios 450 to 454. Lewis, P. J., Carswell, Johnston, Adel and Nolan, JJ., concur.