Schwartz v. Joline — 111 N.Y.S. 726

Majority

p. 726

SCHWARTZ v. JOLINE et al.

(Supreme Court, Appellate Term.

June 30, 1908.)

Headnote

New Trial—Setting Aside Verdict—Insufficiency of Evidence.

A verdict for plaintiff, where he was the only witness on his own behalf and the witnesses for defendant were also interested, should not be set aside on the ground that plaintiff failed to make out his case by a preponderance of evidence, where his testimony was credible, as the jury had - the right to believe him, rather than defendant’s witnesses, though the trial justice might have reached a different conclusion.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 87, New Trial, §§ 142, 148.]

MacLean, J., dissenting.

p. 727

Appeal from Municipal Court, Borough of Manhattan, Eighth District.

Personal injury action by Koppel Schwartz against Adrian H. Jo-line and another, as receivers, etc. From an order setting aside a ver-dict for plaintiff, he appeals.

Order reversed, and verdict reinstated.

Argued before GILDERSLEEVE, P. J., and MacLEAN and SEA-BURY, JJ.

J. C. Levi and Weil & Newhouse (Walter S. Newhouse, of counsel), for. appellant.

James L. Quackenbush (Anthony J. Ernest, of counsel), for respond■ents.

Plaintiff was the only witness on his own behalf, while defendants’ conductor and motorman were the only witnesses for defendants. All the witnesses were interested ones, and the jury were at liberty to give credence to plaintiff, rather than to the conductor or motorman. The plaintiff shows that on the morning of •the accident he was standing on the corner of Third avenue and 100th street, and motioned to the defendants’ conductor to stop his -car, which he did, and thereupon plaintiff boarded the car, which was an open one. When he had both feet on the running board, and was grasping the handles with both hands, and was about to step into the body of the car, the conductor rang the bell and the car started ■quickly, throwing him backward, and causing his head to strike against a pillar of the elevated railroad, whereby he was injured. How long he had remained on the running board he does not state. The con- • ductor tells a different story, tending to show freedom from negligence on the part of the defendants and contributory negligence on the part of plaintiff. The jury found for plaintiff, and on motion ■of defendants the court set aside the verdict on the ground that plaintiff had not made out his case by a preponderance of proof. Plaintiff ••appeals.

We think the court below fell into error. The testimony of plaintiff was credible, and, as above stated, the jury had a right to believé the same, though the justice might have reached a different conclusion ■ on the same evidence. Salcinger v. Int. St. Ry. Co., 52 Misc. Rep. 179 , 101 N. Y. Supp. 804 . The order should be reversed, with costs, .and the verdict reinstated.

Order reversed, with costs, and verdict reinstated.

MacLEAN, J., dissents.