Phelan v. New York, N. H. & H. R. — 143 N.Y.S. 545

Majority

p. 545

PHELAN v. NEW YORK, N. H. & H. R. CO.

(Supreme Court, Appellate Division, Second Department.

September 23, 1913.)

Headnote

Appeal and Ebbob (§ 1002*)—Review—Vebdict Against Weight of Evidence. •

Where there is a sharp conflict in the evidence, and serious question as to the credibility of the witnesses, the verdict will not be disturbed as against the weight of evidence.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.*]

Appeal from Trial Term, Westchester County.

Action by Richard Powers Phelan against the New York, New Haven & Hartford Railroad Company. Judgment for the plaintiff, and defendant appeals. Affirmed.

Argued before JENKS, P. J., and BURR, CARR, RICH, and PUTNAM, JJ.

I. R. Oeland, of Brooklyn, for appellant.

Thomas J. O’Neill, of New York City (L. F. Fish, of New York City, on the brief), for respondent.

While we look upon this case as a close one, both upon the law and the facts, we think that the question of the defendant’s negligence cannot be disposed of as one of law. Nor do we think that, considering the sharp conflict of evidence, and the serious questions of credibilty which arose upon the trial, we should be justified in setting aside the verdict of the jury as against the weight of evidence.

The judgment and order should be affirmed, with costs.