Salcinger v. Interurban St. Ry. Co. — 101 N.Y.S. 804

Majority

p. 804

SALCINGER v. INTERURBAN ST. RY. CO.

(Supreme Court, Appellate Term.

December 11, 1906.)

Headnote

1. Street Railroads—Collision with Vehicles—Negligence—Evidence.

In an action for personal Injuries to plaintiff in a collision between a street car and a wagon which plaintiff was driving, his evidence showed that as he turned to cross the street car tracks he saw a car about a block away; that when the wagon was half way over the second track the car was still half a block away, but that it came at great speed and struck the rear wheel of the wagon, throwing him out and causing considerable injuries. Held, that such evidence was sufficient to sustain a verdict for plaintiff.

2. New Trial—Setting Aside Verdict—Insufficiency of Evidence.

A verdict will not be set aside, and new trial granted, where the evidence is conflicting on the material points, though the conclusion reached by the jury may be one which the court itself would not have reached upon the same testimony.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 37, New Trial, § 144.]

Appeal from City Court of New York, Trial Term.

Action by Freim Salcinger against the Interurban Street Railway Company. From an order of the Trial Term setting aside a verdict for plaintiff, plaintiff appeals. Reversed, and verdict reinstated.

Argued before GILDERSLEEVE, FITZGERALD, and DAVIS, JJ.

House, Grossman & Vorhaus (Louis J. Vorhaus and Charles Goldzier, of counsel), for appellant.

Bayard H. Ames, for respondent.

The action is for personal injuries. The jury found for the plaintiff in the sum of $550. The defendant moved to set aside said verdict, and the court granted the motion, on the ground that the verdict was based upon insufficient evidence and was against the weight of evidence. From the order setting aside the said verdict, plaintiff appeals.

The plaintiff’s testimony shows that on August 34,1903, he was driving a wagon from Ludlow street up Second avenue to Twelfth street. He was then on the right-hand side1 of Second avenue, going north, and he turned to cross said avenue in order to go west on Twelfth street. As he turned he saw a car on Second avenue about a block away. His horse and wagon then crossed the uptown track and got onto the south-bound track. When the wagon was about half way across the said track, the car was still about half a block away; but it came on at great speed, and struck the rear wheel on the right side near its center, and threw plaintiff from the wagon and caused considerable injuries. Assuming this testimony to be true, plaintiff made out a case. His testimony is contradicted by defendant’s witnesses; but the verdict should not be set aside, and a new trial granted, where the evidence is conflicting on material points, even though the conclusion reached by the jury may be one which the court itself would not have reached upon the same testimony. Swartout v. Willingham. (Cir. Ct.) 26 N. Y. Supp. 772 . The charge of the court was very favorable to the defendant, who took ho exception thereto. The jury, however,

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believed the plaintiff’s version of the facts, as they had a right to do, and gave their verdict accordingly.

The order appealed from should be reversed, with $10 costs and disbursements, and the verdict reinstated. All concur.