Hickey v. New York Cent. & H. R. R.

amended by Laws of 1900, c. 549; now incorporated in Consolidated Laws, c. 49, § 79; Laws of 1910, c. 481, § 79. If this train did not have in it a sufficient number of cars equipped as the statute requires, and the collision resulted therefrom the defendant is liable. But the defendant contends that the plaintiff has failed to show that. It insists that the train had in it a sufficient number of air-brake equipped cars to control the train, and that the collision occurred through an error of judgment or want of care on the part of the engineer on the south-bound train, in not putting on his air brakes properly and timely. In the action brought by the personal representative of the deceased engineer, this same ground of liability, among others, was urged. The trial court held against the plaintiff in that case and nonsuited her. The judgment entered upon the nonsuit was affirmed by this court and by the Court of Appeals. Ruleff v. N. Y. C. & H. R. R. R. Co., 117 App. Div. 917 , 102 N. Y. Supp. 1147 ; Id., 190 N. Y. 556 , 83 N. E. 1131 . The personal representative of the deceased fireman, the plaintiff in this action, was more fortunate at the trial terms. The case has been tried four times, and upon each trial the plaintiff has had a verdict. The same ground of liability which is now urged was urged upon each of the appeals before us. The verdict upon the first trial was set aside by the trial judge as inadequate. The judgment entered upon the second trial was reversed by this court upon the authority of the decision in the Ruleff Case. Hickey v. N. Y. C. & H. R. R. R. Co., 140 App. Div. 938 , 125 N. Y. Supp. 1123 . The plaintiff had a verdict upon the third trial, and the judgment was reversed upon the distinct ground, as stated in the decision, that the plaintiff did not prove that the injury which caused the death of her intestate was due to the negligence of the defendant. 155 App. Div. 877 , 139 N. Y. Supp. 1126 . The case comes here for the third time. We have given it careful consideration, and think the evidence is substantially the same in effectiveness as before. It fails to show, as we think, that the collision was caused by a lack of sufficient air-brake equipped cars in the train.

Twelve of the 20 cars in the south-bound train had effective air-brake equipment. If the engineer had applied his brakes a little sooner than he did, he could have stopped his train. It had almost stopped when the collision occurred. The track was wet and slippery, but the engineer knew that, or should have known it. We think the evidence fairly shows that the collision was caused either by a lack of care and ■attention or error of judgment upon the part of the engineer of the south-bound train, and not by a lack of air-brake equipped cars. The defendant is not liable for the negligence of the engineer of the southbound train. The Barnes Act (Laws of 1906, c. 657) was passed in 1906, which was after the happening of the accident.

[2] Counsel for the plaintiff urges that we should allow this verdict to stand, because the plaintiff has had four verdicts at the trial terms, sustained by the trial judge in each instance. That suggestion would be entitled to great weight if the evidence had been sufficient to submit the case to the jury, and the verdict set aside only as against the weight of the evidence. But where, as here, the reversal is upon the law, the number of verdicts which a plaintiff may have obtained is

not potent. Even where the verdict is set aside as against the weight of the evidence, the controlling circumstance is not the number of times a jury may have decided a given question the same way, but rather, whether the verdict is the result of conscientious and intelligent consideration, or is influenced by passion, prejudice, or other improper considerations. We have frequently refused to set aside a verdict, even the second time, although the second verdict may be more favorable to the prevailing" party than the first one, without a corresponding betterment of the evidence to sustain it, if the defeated party has had a fair trjal and the trial is free from prejudicial error. Such a case is Larsen v. Lackawanna Steel Co., 138 App. Div. 375 , 122 N. Y. Supp. 1077 ; Id., 146 App. Div. 238 , 130 N. Y. Supp. 887 . One fair trial is all a litigant is ordinarily entitled to as a matter of right. If the question here were simply the weight of the evidence, we would let this judgment stand. We have no doubt this verdict represents the intelligent and conscientious judgment of the jurors and of the learned trial judge who sustained it. The record is entirely free from anything that would warrant us in setting aside the verdict, except as we think the evidence is insufficient as a matter of law to establish actionable negligence against the defendant.

A motion to dismiss the plaintiff’s complaint was made at the close of the evidence, and denied. We think it should have been granted. So far as the record discloses, all "of the evidence offered by the plaintiff was received, and no error prejudicial to the plaintiff was committed.

[3] As has been stated, the action has been tried' four times. We think a new trial should not be awarded, but under the provisions of ■ section 1317 of the Code of Civil Procedure the complaint should be dismissed.

The judgment should therefore be reversed, and the complaint dismissed, with costs. All concur.