Belcher v. Manhattan Railway Co.

The plaintiff in this action sought to recover damages which he claims to have sustained by reason of slipping upon the ice upon the stairs of the defendant. The defendant claims, upon the other hand, that there was no ice upon the stairs, and that the slipping of the defendant was an ordinary accident for which they were in no degree responsible.

The issue involved was one of fact. The defendant, to be sure, had a greater number of witnesses, and as far as this record shows they seem to have sworn as positively that there was no ice upon those steps upon which the plaintiff could have slipped, as did the plaintiff that there was ice upon which he did slip. The defendant also proved that since the twentieth of February up to the twenty-fifth of February, at a quarter past six in the morning, of which day was the time of the happening of the accident, there had been no storm of' snow or rain from which any ice could have formed. It appears, however, that the twenty-fifth of February was a stormy and sleety day.

The condition of the evidence in this case is such that if the learned judge whe presided at the trial had set aside the verdict as against the weight of evidence, such an order upon appeal might have been sustained because the court below has the opportunity of seeing the witnesses, of judging of their method of testifying and of weighing the evidence as given with much greater accuracy than can be attained by an appellate court; and if there had been any infirmities in the plaintiff’s case, arising from his manner of giving testimony or from his conduct on the stand, which could not be portrayed in this case, and which might have affected his credibility, and which, to the trial judge, would have seemed to call upon him to set aside the verdict in view of the nature of the evidence offered upon the part of the defendant, such conclusion would not, upon appeal, have been interfered with.

But the learned judge denied this motion. .In his judgment, therefore, there was nothing in the circumstances of the case, or in the procedure of the trial, which so far impaired the weight to be given to the evidence of the plaintiff as to justify his interference. Simply because the jury have believed the plaintiff in preference to the defendant’s witnesses, forms no ground whatever for the setting aside of the verdict; and, so far as we are able to judge from the record in this case, the plaintiff is entitled to precisely the same credence as the defendant’s witnesses, and his evidence was given, upon the part of the jury, greater weight than that of the defendant’s witnesses. With this conclusion we cannot interfere.

The exceptions in regard to the damages do not seem to be well taken.

The allegations in the complaint were sufficient to justify the introduction of evidence as to the nature and extent of the injuries and their immediate results. In the case of Ehrgott v. Mayor ( 96 N. Y., 275 ), proof, under similar allegations of the complaint, was sustained.

The objection to the question, “ What were you earning at the time of the injury?’' is not well taken. The objection was general in its character, and did not call attention in any respect to any of the imperfections which are urged against the admission of the question upon the appellant’s point.

There seems to be no reason for interference with the judgment, and it must, therefore, be affirmed, with costs.

Bartlett and Macomber, JJ., concur.