Schick v. Brooklyn City R. R. — 32 N.Y. St. Rep. 245

Majority

p. 245

Bettie Schick, an infant, Resp’t, v. The Brooklyn City R. R. Co., App’lt.

(City Court of Brooklyn, General Term

Filed June 23, 1890.)

Headnote

Verdict — Weight op evidence.

The mere fact that the witnesses for one side outnumber those on the other will not necessarily create a fair preponderance of evidence such as is necessary to require a verdict to be set aside as against its weight. A fair preponderance of evidence in this connection means evidence of such character and weight as will carry conviction to the minds of the jurors of the existence of the facts sought to be proven.

Appeal from judgment in favor of plaintiff for §500 and from order denying motion for a new trial.

Action to recover damages for injuries alleged to have been «caused by defendant's negligence.

B. F. Strauss, for resp’t; Moore & Wallace, for app’lt

The only question raised on this appeal is that the verdict for plaintiff is against the weight of evidence.

Plaintiff rested her case as to how the accident occurred upon the testimony of herself and Lena Bloch, her companion on the car. Their testimony was to the effect that the conductor was signalled to stop, and that he blew liis whistle and the car came to about a stand still, and as she was about to step off he blew his whistle, and the car started and threw her off.

The defendant produced seven witnesses for the purpose of throwing light on this accident and contradicting the story of the plaintiff and her companion, and now insists that their testimony demonstrated that the verdict is against the weight of evidence, and should not be allowed to stand. The largest number of witnesses will not necessarily create a fair preponderance of evidence over’that of the smaller number. A fair preponderance in this connection means evidence of such character and weight as will carry conviction to the minds of the jurors of the existence of the facts sought to be proven. This requires of us a careful examination of the testimony in this case. We have read it all critically, and find in the testimony of defendant’s witnesses circumstances that tend to corroborate the testimony for plaintiff and to weaken the statements of defendant’s witnesses, as well as contra

p. 246

dictions of the statements of plaintiff’s witnesses. The conductor’s _ employment is some evidence of' his bias; besides his story is in conflict in some respects with that of other witnesses for the defendant, and has some of the ear marks of improbability. He says immediately after he was signalled to stop the car he blew his whistle for that purpose, and that instantly, before it stopped, plaintiff made a running jump from the body of the same while it was in motion, and while both of her hands were held by her companion (witness Bloch). Yogt says she fell báckwards. Hirschberg says he is not certain the car was in motion. Saul Pass says he was engrossed with his newspaper and did not. see her leave the car, though he saw her on the ground. Schmidt says the same. Behring says she made a step down and fell.

We think the jurors, who had all the advantages of seeing and hearing these witnesses, were the best judges of the truth of the story told by plaintiff and Lena Bloch, or of the story presented by the defendant. Defendant’s counsel did not move for a non-suit or ask for the direction of a verdict in its favor. This would seem to indicate that he at that time thought it was a proper case to submit to the jury. Ross v. Colby, 3 Hun, 546 ; Barrett v. Third Ave. R. R. Co., 45 N. Y., 628 , 632. We do not find that preponderance of evidence which calls upon us to disapprove of the verdict of the jury.

The judgmeht and order appealed from must be affirmed, .with costs.

Osborne, J., concurs.