McCann v. New York & Queens County Railway Co.

This is a statutory action to recover damages for the death of Simon McCann. The case has been tried four times, each trial resulting in a verdict for the plaintiff. The first verdict was for $6,000. On appeal it was set aside by this- court as against the weight of evidence. 28 App. Div. 625 , 50 N. Y.. Supp..

There is nothing extraordinary in this case. This court has •merely differed from the jurors on the inferences that should be •legitimately drawn from the evidence. It is significant that in attempting to pass upon these questions of fact this court has not been unanimous. The first time the verdict was set aside upon that ground two justices dissented and the last time one dissented. It -is plain that in these circumstances the trial court would have no •right to nonsuit the plaintiff, and that the court cannot reverse and dismiss the complaint. These issues of fact must be ultimately decided by the jury. The single question presented, therefore, is whether this court can or should accomplish indirectly by setting aside the verdict what it could not accomplish directly, viz., prevent a recovery by the plaintiff. The statutory law on the subject is •meager. Section 999 of the Code of Civil Procedure provides that the justice presiding at a trial may entertain a motion made upon his minutes to set aside-the verdict upon the ground, among others, that it is “contrary to the evidence.” There is, it is true, no express limitation as to the extent to which the court may exercise this power, but this authority is to be construed in the light of the -settled practice of the courts. Where the right to a jury trial exists, it is intended that the verdict of the jury shall be conclusive .upon the facts in the absence of legal error or bias, passion, prejudice, or corruption. Verdicts are set aside as against the weight of evidence, and new trials are granted on the theory that the jury .have been influenced by bias, passion, prejudice, or corruption.

The early decisions were to the effect that, where two successive verdicts are the same, the second would not ordinarily be disturbed on the ground that it was against the weight of evidence. Wilkie v. Roosevelt, 3 Johns. Cas. 206 , 2 Am. Dec. 149 ; Gilligan v. Railroad Co., 1 E. D. Smith, 453; Seely v. Shaffer (Sup.) 10 N. Y. Supp. 283 ; Nichols v. Tuttle (Sup.) 12 N. Y. Supp. 394 ; Yeandle v. Yeandle (Sup.) 16 N. Y. Supp. 49 ; Haring v. Railroad Co., 13 Barb. 16 ; Fowler v. Insurance Co., 7 Wend. 275 ; Betsinger v. Chapman, 24 Hun, 16 ; Barrett v. Railroad Co., 45 App. Div. 225 ; 229, 61 N. Y. Supp. 9 ; King v. Association, 87 Hun, 591 , 34 N. Y. Supp. 563 . Sometimes, as in this case, a second verdict has been set aside as against the weight of evidence; but unless the circumstances are extraordinary, and the verdict is clearly outrageous, a court is not justified in setting aside a third verdict upon the same facts. Dorwin v. Westbrook, 11 App. Div. 394 , 42 N. Y. Supp. 1123 , affirmed in 158 N. Y. 742 , 53 N. E. 1124 ; Nutting v. Railroad Co., 91 Hun, 251 , 36 N. Y. Supp. 142 ; Id., 21 App. Div. 73 , 75, 47 N. Y. Supp. 327 ; Scheftel v. Hatch (Sup.) 25 N. Y. Supp. 240 ; Kummer v. Railroad Co., 14 Misc. Rep. 507 , 35 N. Y. Supp. 1066 ; Clark v. Jenkins, 162 Mass. 397 , 38 N. E. 974 .

While the trial court and the appellate division should not hesitate to set aside a verdict as against the weight of evidence, where the ends of justice appear to require a new trial, yet, when it comes to setting aside a third verdict rendered in an ordinary action possessing no extraordinary features, the court should hesitate lest it usurp the functions of the jury.

A sufficient number of trials has now been granted to remove any suspicion of the existence of bias, passion, prejudice, or corruption, and it becomes a mere matter of judgment on questions of fact. The administration of jurisprudence, where trial by jury is preserved, goes upon the theory that the judgment of 12 laymen upon a question of fact is safer than that of a smaller body of judges, who are more removed from the people. An unwarranted exercise of this power would sooner or later bring the judiciary into disrepute. We think any further interference with the verdict of the jury in this case would be unauthorized and unjustified. As appears by a recital in the order, the learned trial justice did not exercise his individual discretion, but he set the verdict aside upon the theory that it was his duty to do so under the last decision of this court. In this he was in error. This court merely determined that the case should be again submitted to the jury. The damages awarded are not excessive.

It follows from these views that the order should be reversed, and the verdict reinstated, with costs of the appeal to the appellant. .

PATTERSON and O’BRIEN, JJ., concur.

(dissenting). The evidence adduced upon the last trial is substantially the same as that adduced upon the preceding one. There is no material change whatever, unless it be that the evidence on the part of the defendant has been strengthened. On the last' appeal, this court, in reversing the judgment and ordering a new trial, held that the verdict was against the evidence, not only as to the defendant’s negligence, but also as to the contributory negligence of the deceased. 65 App. Div. 611 , 72 N. Y. Supp. 1117 . That is the law of the case, binding upon the trial court, and I think upon this court, notwithstanding the personnel of it is. changed.

But it Is said the order should be reversed, and the verdict reinstated, because a jury has four times found in favor of the plaintiff. A wrong committed, no matter how often, never makes a right. This verdict is wrong. It is the result of misconception, prejudice,, er partiality, and ought not to be approved by the court. Upon, substantially the same state of facts we have several times declared that the plaintiff ought not to recover, and yet we are about to permit a recovery because the jury forsooth have for the fourth time committed the same wrong. The law imposes a duty upon this court to review verdicts, and whenever it can be seen that injustice has been done by reason of the jury not properly considering the evidence, or that its action has been influenced either by prejudice or partiality, then the court ought, in the discharge of its duty, to fearlessly exercise the power given to it by the statute, and right the wrong by setting the verdict aside and ordering a new trial, and this as many times as may be necessary to accomplish the proper result. Justice never tires, and an act ought not to be approved in its name which wrongfully takes property from one person and. gives it to another.

I think the order appealed from should be affirmed.

INGRAHAM, J„ concurs.