Brennan v. New York Central & Hudson River R. R. Co. — 30 N.Y. St. Rep. 378

Majority

p. 378

Patrick Brennan, Resp’t, v. The New York Central & Hudson River R. R. Co., App’lt.

(Supreme Court, General Term, Second Department,

Filed February 10, 1890.

Headnote

® BG-LIG-BUCB—V BKDICT.

Where the plaintiff’s evidence in an action for negligence is sufficient, if found to be true, to sustain a verdict in his favor, and the case has been. properly submitted, such verdict will be permitted to stand.

Appeal from judgment for $3,250, in favor of plaintiff, entered on the verdict of a jury.

Plaintiff, while leaving a train on the West Shore railroad, at Newburgh, was struck by the engine of another train, and his right arm nearly severed.

A. 3. & W. F. Gassedy, for app’lt; Jas. G. Graham, for resp’t..

The plaintiff has recovered judgment against the defendant for personal injuries sustained on the West Shore road,, at Newburgh, and the defendant has brought the case here for review on appeal.

It is very seldom that a case is so stubbornly contested upon the facts as this has been, for almost the only undisputed material fact in the case is the injury of the plaintiff by one of the defendant's trains.

The company controverted the very initial fact upon which the plaintiff based his case, and denied that the relation of passenger and carrier existed between him and the defendant.

Not only were the material facts placed in controversy, but the-whole field was fought over and contested inch by inch.

It was the claim of the company that the defendant stole his ride if he was on the train at all, and that when he sustained his injuries he was endeavoring to escape unobserved from the train upon which he rode without pay and without observation.

It was also claimed that the plaintiff left the train on the wrong side, and rushed blindly into danger, when he had a perfectly plain and safe place of exit on the east side of the train.

The damaged character of the plaintiff was thrown into the

p. 379

scale against him, and the attitude of the parties was one of fierce warfare from the - commencement to the end of the trial.

The case was submitted to the jury with an elaborate charge, in which we detect no error, and the plaintiff obtained the verdict.

Under such circumstances there is but small scope for the operation of an appellate tribunal.

If we say a different result would have been more satisfactory to us it is immaterial, and if we say we would have made another verdict it is immaterial also, for the facts were for the jury and we cannot deprive that body of its prerogative. If there be testimony sufficient-to sustain the verdict, it must stand.

In this case if the jury found the testimony of the plaintiff true, it was sufficient, and we must now assume that such was the finding.

In our view the case was one eminently proper for the jury upon the question of the negligence of the defendant and the contributive negligence of the plaintiff, and that the case was properly submitted.

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

Barnard, P. J., and Pratt, J., concur.