Dowling v. Brooklyn Heights Railroad — 107 A.D. 312

Majority

p. 312

Bridget A. Dowling, Appellant, v. The Brooklyn Heights Railroad Company, Respondent.

Headnote

Negligence — explosion on an electric street car — liability, arising not because of the sudden stovping of the car, but in creating the emergency which induced it — action of trial judge in setting aside a verdict not reversed unless clearly improper.

Where an explosion occurs on an open electric street car, in consequence of a short circuit which was due to-the action of water splashing on the sides of the car, caused by the conduct of the motorman in running the car at an. imprudent rate of speed over tracks covered with water, and coincident with the explosion the motorman checks the motion of the car so abruptly as to throw a passenger on the car from her seat into the_street, the negligence of the motorman in creating the emergency which induced him to stop the car renders the railroad company liable for the injuries sustained by the passenger, although the sudden stopping of the car, considered by itself,, might not have been anything more than a mere error of judgment on the part of the motorman,

Where the judge presiding at a jury trial sets aside the verdict rendered by the jury because such verdict seems to him to be based upon false testimony, his action should not be reversed by an appellate court unless it appears very clearly that he was wrong in the opinion which he formed as to the truthfulness of the testimony.

Appeal by the plaintiff, Bridget A. Dowling, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 2d day of March, 1904, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Trial Term, a previous verdict in favor of the plaintiff for $4,500 having been set aside by the court.

Henry Escher, Jr. [George F. Elliott with him on the brief], for the appellant.

I. R. Oeland [George D. Yeomans with him on the brief], for the respondent.

The plaintiff, a passenger on one of the open electric cars operated hy the defendant corporation, claimed to have been injured by the action of the motorman in checking the motion of the car so abruptly as to throw her from her seat into the street. Just before the car was 'thus suddenly stopped an explosive report was heard ■ by the' passengers, and the' car was filled with fire and smoke. It

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was undoubtedly this occurrence which caused the motorman to shut off the power and put on the brakes with the result stated. The testimony in behalf of the plaintiff indicated that the explosive report was due to the fact that what is known to electricians as a short circuit was produced on account of the'rapid movement of the car through the water on the street, which, in consequence, of a recent, rain fall, was high enough to splash up on the sides. The defendant, on the other hand, sought to show that the car was in fact struck by lightning. The learned trial judge told the jury, however, that it made no difference whether the motor box blew out without a lightning stroke, or whether the lightning stroke was the cause of the explosion, inasmuch as the question upon which the -case turned was whether the accident happened by the negligence of the motorman in stopping the car so as to bring it up with a jerk sudden enough to throw the passengers out.

After a verdict of $4,500 had been rendered in favor of the plaintiff, the court entertained a motion to set it aside and direct a verdict for the defendant. This motion having been granted, judgment was entered upon the direction, and from that judgment the present appeal is taken.

The opinion of the learned trial judge indicates that he set aside the verdict for the .plaintiff on the ground that it was against the weight of evidence, first, because the story of the plaintiff was palpably false, and, second, because the unmistakable weight of evidence was that the car was struck by lightning.

These considerations, if founded upon a correct view of the proof, warranted the granting of a new trial, but not the direction of a verdict the other way. That direction was evidently based upon the assumption that the alarming explosion which occurred in the car, whatever its cause, justified the motorman in stopping the car promptly, in view of the emergency ; and that, at most, he was chargeable only with an error of judgment, upon which negligence could not be predicated.

The correctness of this latter conclusion could hardly be questioned if it appeared beyond dispute that the defendant was not chargeable with negligence in case the explosion occurred on account of a short circuit, produced by running the car at an imprudent rate of speed in view of the quantity of water on the tracks. If the motor

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man was careless in this respect, and his carelessness thus occasioned the emergency which required him to bring the car to a -sudden stop, the defendant would be liable for his negligence, taking his whole conduct into consideration, although the sudden stopping of the car might not alone have been anything more than an error of judgment.

It seems to us that upon this record the trial court went too far in directing a verdict for the defendant. We are not Willing, however, to interfere with the discretion which was exercised in setting aside the verdict in favor of the plaintiff. That discretion was evidently influenced by the impression produced upon the mind of the learned judge by the testimony of the plaintiff herself. Inasmuch as the-effect produced by the demeanor of the witness and his manner of giving evidence cannot be adequately conveyed to an appellate tribunal by means of the printed report, the court of review should be' particularly careful in nullifying the exercise of judicial discretion where it distinctly appears to have been based upon such personal observation. It may be that the conclusion reached in regard to the veracity of the witness will be deemed a mistaken one by the jury upon another trial; but where the trial judge has- set aside the verdict because it seems to him to be based on false testimony, his action should not be .reversed, unless it very clearly appears that he was wrong in the opinion- which he formed as to the truthfulness of the evidence. \

We think that entire justice Will be done to both parties to this appeal by an order awarding a- new trial on the customary terms, on the ground that the verdict in favor of the plaintiff Was against the evidence; but reversing the judgment for the defendant founded upon the direction of a verdict in its favor;

Jbnks, Rich and JVIilleb, JJ., concurred; Woodward, J., voted to reinstate the verdict in favor of the plaintiff.

Judgment modified so as to grant a new trial to the defendant, upon the ground that the verdict in favor of the plaintiff was against the weight of evidence, upon payment by the defendant of the costs of the trial already had and disbursements to the date of the order ; and the judgment, so far as it directs a verdict in favor of the defendant, reversed, without costs.