Vedder v. Fellows (20 N.Y. 126, 1859)

S. B. Strong, J.

If the judge had so far complied with the request of the counsel for the defendant as to have made a positive decision as to the reasonableness or unreasonableness of the regulation requiring all the passengers for any station west of Schenectady, immediately after leaving Utica, to deliver up their tickets without at the same time receiving a check or some other paper evincing their right of passage to their respective places of destination, the defendant would have been precluded from contending that the judge had erroneously assumed it to be a question of law. Of course the defendant might have availed himself of the objection, if well founded. that the question had been erroneously decided against him. But the judge was not requested to decide the question as one of law hypothetically, and then to submit it to the jury as one of fact; and in doing- so it seems to me, that he erred, whether his opinion upon such question was right or wrong. He should in the first instance either have decided it positively as a question of law, or have determined to submit it as a question of fact to the jury, without himself expressing any opinion about it; agreeably to the maxim that to questions of law the court, and. to questions of fact the jury, respond. The judge has undoubtedly a right to assume as established any fact which is admitted or sustained by clear, conclusive and. undisputed 'evidence, and he may comment upon the weight due to the testimony of any. of the witnesses, but he cannot rightfully state to the jury, his conclusion as. to any questionable fact. The difficulty is not cured by an announcement to the jury, such as was made in this case, that the question was one of fact for their determination, and that if they should not concur in his conclusion.they might decide the other way. In most instances the jury would concur with the. expressed opinion of the court on questions of fact; and if the practice of stating it, and especially in such a manner as to leave it doubtful whether the question was one of law or fact, should become common, and should be tolerated, parties would in effect be deprived of their constitutional right.to have their cases decided by a jury on all questions proper for their determination.

I think that the judge erred in his eventual conclusion, that .tire question to which I have alluded was one of fact and not