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Hynes v. Metropolitan St. Railway Co.

64 N.Y.S. 382 Court General Term. Decision date 1900-05-01 English

Delivered by O’DWYER, J.

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p. 382
HYNES v. METROPOLITAN ST. RY. CO.
(City Court of New York,
General Term.
May 1, 1900.)

Headnote

Appeal—V erd i or—Re vie w.
Notwithstanding plaintiff alone testified as to an accident, and was contradicted by four of defendant’s witnesses, a verdict in her favor will not be disturbed where a proper charge in respect to preponderance of evidence was given.
Appeal from trial term.
Action by Margaret Hynes against the Metropolitan Street-Railway Company. From a judgment in favor of plaintiff, defendant appeals.
Affirmed.
Argued before FITZSIMONS, C. J., and O’DWYER, J.
Brown & Robinson, for appellant.
Charles Steckler, for respondent.

The plaintiff had a verdict, and the only ground -upon which the defendant seeks to reverse it is that it is against the weight of evidence. There were two versions of the accident, and the jury had the right to consider the probabilities, and it was for them to say, in view of the evidence, which was the true one;

p. 383
the plaintiff, contending that the car had come to a stop, and, while she was attempting to alight, suddenly starting, and throwing her to the ground, and the defendant insisting that she (at the time of the accident a woman over 43 years of age) deliberately leaped from the car while it was in full motion, going about six miles an hour,, although the accident occurred a little after 10 o’clock at night,, and it was as dark as usual at that time of night. The conflict in the evidence was submitted in a charge (to which no exception was taken), with full advice to the jury with respect to the law and the-obligations of the plaintiff to sustain her contention by a fair preponderance of the evidence; and, although there are four witnesses-in favor of the defendant and only the plaintiff in her own behalf, we are not prepared to say on this record that the jury failed to discharge their full duty to the defendant, or that the verdict is the result of passion, prejudice, corruption, or mistake. Sawalsky v. Railroad Co., 39 App. Div. 661 , 57 N. Y. Supp. 775 . A fair preponderance of evidence does not mean the largest number of witnesses. Martin v. Railroad Co., 3 App. Div. 448 , 38 N. Y. Supp. 652 ; Norton v. Railroad Co., 26 App. Div. 622 , 53 N. Y. Supp. 1110 .

The judgment and order appealed from should be affirmed, with costs.

FITZSIMONS, C. J., concurs.

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