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._ Metropolitan, the court there said that the
refusal to so charge was reversible error." The judge looks wise and
finally says, "yes." There is a little playing of politics in this; he
has possibly been thinking how the jury are going to decide and
realizing that what he charges won't make any difference, he plays
safe by charging what the losing side wants.

These requests to charge may go back and forth indefinitely with
rulings and exceptions. Either lawyer may except to a portion of the
judge's charge, thus serving notice upon him that unless he hurry up
and change it he may be reversed on appeal. That is the reason why the
charge of the judge has not a great effect. He has to be too careful.

In New York State the judge can not say what he thinks about the
case. In other words, the charge must be indefinite. In England and
the Federal courts in this country, the judge may legally express his
opinion as to how the case should be decided, but that is as far as he
can go. The distinction is a relic of the old days of the jury system
when the judges would imprison the jury until they found as was
wanted. Now the judge may only express a preference and the jury may
do as they please. In some courts the democratic idea of the
independence of the juryman goes to the extent of not allowing the
judge to say anything specific.

The result is that the jury are confused. They are usually of so
independent a nature that the judge's charge would not greatly
influence them. The clients sit by utterly confounded; they hear the
judge wisely say, "I think perhaps yes, but on the whole it may be
no," and when he is through, not understanding as much as the jury,
they think the judge's charge is very fair. Having said little of
import it probably is.

The continental method is so entirely different, that it is shocking.
In the courts in France the judge practically says for his charge,
"You've heard the evidence, now go on out and do what's right." This
again illustrates the difference between the old and the new ideas of