Reynolds v. New York Central & Hudson River Railroad

Majority

p. 763

REYNOLDS v. NEW YORK CENT. & H. R. R. CO.

(Supreme Court, Appellate Division, First Department.

August 4, 1897.)

Headnote

Carrie us of Passengers—Negligence—Sufficiency of Evidence.

Plaintiff, Who had purchased a ticket to a certain point, testified, without corroboration, that as he was attempting to alight at an intermediate station the train suddenly started, and threw him to the ground, while many witnesses for defendant swore that plaintiff attempted to leave the car before it stopped, and others contradicted him on other points. Held, that an order setting aside a verdict for plaintiff as against the weight of the evidence would not be disturbed.

p. 764

Appeal from trial term, New York county.

Action by James Reynolds against the New York Central & Hudson River Railroad Company. From an order granting a new trial after a verdict for plaintiff, lie appeals.

Affirmed.

Argued before VAN BRUNT, P. J., and RUMSEY, PATTERSON,. O’BRIEN, and PARKER, JJ.

Thomas P. Wickes, for appellant.

Daniel W. Tears, for respondent.

The action was brought to recover damages for-personal injuries received by the plaintiff while a passenger upon the train of the defendant going from New York to Yonkers, on the 6th of October, 1894. As the result of the trial the plaintiff recovered a verdict for $2,500, which was set aside, and a new trial' ordered, by the trial judge, upon the ground that the verdict was-contrary to the weight of the evidence. The claim of the plaintiff was that on the night of October 6, 1894, he had bought a ticket to> go from New York to Yonkers; that when the train reached Kings-bridge he started to leave it, intending to take another train which reached Yonkers at a station nearer his house than the one upon which he was then riding; that as he was debarking from the train,, after it had stopped at the station, it suddenly started with a jerk, and he was thrown to the ground, his hand striking the track in front of the wheels, which passed over it, and crushed it. He said' that after he had fallen the train was stopped, and he was taken-, aboard again, and taken to Yonkers. The ground of his complaint was that the train was started as he was getting off, without giving him an opportunity to step upon the ground. No other-witness than he was sworn in his behalf on that subject, and the fact that the train was started as he was getting off of it stands-upon his uncorroborated testimony. On the part of the defendant several witnesses were sworn upon that subject, some of .whom testified that the plaintiff attempted to leave the train before it had stopped at the station, and fell in his attempt. Others testified' that the train, after stopping at the station, and starting again, was not stopped until it reached the next station, and that it was not started and stopped after proceeding a short distance, as testified' to by the plaintiff. Upon these two points the evidence was overwhelming, and while the testimony was that of interested witnesses, as was also the testimony given on behalf of the plaintiff with regard to the accident, yet there was so much of it, and it was-so given, as to entitle it to very great weight. There was evidence,, in addition, tending to show that the plaintiff, at the time of receiving the injury, was considerably intoxicated. That he had been drinking something was not denied, but he did deny that he was intoxicated, and in that respect he was corroborated by other witnesses, so that upon that subject there was a fair conflict of testimony. But the serious question in the case, as will be seen, was-whether the train was started without giving the plaintiff an opportunity to leave it. In considering that question it must not be-

p. 765

forgotten that the defendant’s trainmen had no reason to suppose that the plaintiff was about to leave the train, because he had taken a ticket for Yonkers, and the train had not yet reached that station. Upon the whole case, it is quite clear that the evidence in favor of the defendant was largely preponderating upon the vital question whether the train started while the plaintiff was getting off from it. In such cases as this, where the trial judge, who heard the testimony, and saw the witnesses, has set aside the verdict because it is against the weight of evidence, great weight is to be attached to his conclusion, and, unless the appellate court can clearly see that he is wrong in his decision, the order granting a new trial should be affirmed. Such must be the result in this case, and the order must he affirmed, with costs to the respondent to abide the event of the action. All concur.