Hyperlawhypertext legal database Scholl v. Broadway Railroad 28 Abb. N. Cas. 205

← Cases

Scholl v. Broadway Railroad

28 Abb. N. Cas. 205 Court N. Y. Supreme Court, First District; English

Delivered by Lawrence, J.

Contents

Majority

p. 205
SCHOLL v. BROADWAY RAILROAD CO.
N. Y. Supreme Court, First District;
General Term, February, 1892.

Headnote

Trial; question for jury.] Testimony of a party in his own favor suffices to carry the case to the jury although uncorroborated, and contradicted by other witnesses.[1]
Appeal from judgment and order denying new trial.
This action was brought to recover damages for personal injuries alleged to have been sustained by the plaintiff though the negligence of the defendant. The plaintiff was the sole witness on her behalf as to the manner in which the casualty occurred ; the defendants relied on contradiction by several witnesses called by them for that purpose.
Plaintiff had a verdict.
W. M. Ingraham and T. S. Moore, for defendant.
E. J. Dunphy and H. M. Hitchings, for plaintiff respondent.

The counsel for the appellant states in his printed points, that:

“ The sole question arising upon this appeal is brought before the court by the exception taken to the denial of the motion made to dismiss the complaint upon all the testimony, on the ground that the evidence of plaintiff’s negligence is so overwhelming that there is nothing to submit to the jury, and that the absence of the defend
p. 206
ant’s negligence has been also proved by an overwhelming weight of testimony; and also by the appeal from the order denying a motion for a new trial upon the ground that the verdict was against the weight of evidence, contrary to the evidence, and contrary to law.”

It has been repeatedly held, that in an action to recover damages for alleged negligence the plaintiff is -entitled to have the issue of negligence submitted to the jury, when it depends upon conflicting evidence, or on inferences to be drawn from circumstances in regard to which there is room for a difference of opinion among intelligent men (Payne v. Troy & Boston R. R. Co., 83 N. Y. 572 ; Kain v. Smith, 89 Id. 375, 384).

The mere fact that the sole witness as to the manner in which the accident occurred was the plaintiff herself, and that the defendant examined four witnesses for the purpose of contradicting her, would not have justified, in our opinion, the withdrawing the case from the consideration of the jury.

The jury were the sole judges as to the facts, and if they believed the plaintiff’s statement, rather than the evidence of the witnesses on the part of the defendant, it was certainly within their province and power to do so.

There is nothing in the case which tends to show that the jury, in rendering their verdict, were governed by sympathy or undue influence, and as the case was submitted to them under a charge to which no exception was taken by either party, we cannot undertake to interfere with the conclusion which they reached.

The motion for a new trial was properly denied,' for the reason that the verdict cannot be said to be against the weight of evidence or contrary to the evidence or contrary to law ; nor under the decisions can it be said that the damages awarded to the plaintiff were excessive (Fitch v. Broadway & Seventh Ave. R. R. Co., 32 State Rep. 376; Jordon v. N. Y. & Harlem R. R. Co., 30 Id. 670).

p. 207
The judgment and order below must therefore be affirmed, with costs and disbursements.

VAN Brunt, P. J., concurred.

Cases cited