Kenney v. Ocean Steamship Co. — 33 N.Y. St. Rep. 987

Majority

p. 987

Patrick Kenney, Resp’t, v. The Ocean Steamship Co. of Savannah, Appl’t.

(Supreme Court, General Term, First Department,

Filed October 24, 1890.)

Headnote

Negligence—Veudict.

The only evidence as to how the accident occurred was that given hy the plaintiff, who contradicted himself in several important particulars. Meld, that the court should have directed a verdict for defendant, and that a verdict for plaintiff should not he allowed to stand.

Appeal from judgment entered upon verdict and from order denying motion for new trial.

p. 988

Action to recover damages for a personal injury sustained by plaintiff, through an alleged negligence of defendant’s servants, in throwing a stick, of cord-wood four feet long into the fireroom of their steamship, where the plaintiff was repairing a boiler, without giving any warning to the occupant of the fireroom. The plaintiff was struck on the head, and is alleged to be completely disabled for life.

Defendant claims, on the contrary, that on the day in question cord-wood was repeatedly thrown down the ventilator used for that purpose, and several witnesses testified that it was done in the usual way, and that the usual signal to stand clear was given before the wood was thrown down. The only direct evidence as to how the accident occurred was that of the plaintiff himself.

FT. Bijur, for app’lt; H. A. Foster, for resp’t.

Much as the court may sympathize with the plaintiff because of the injuries which he has received by the unfortuate accident which forms the subject-matter of this action, we cannot see from the evidence in the case that he has either established the negligence of the defendant or freed himself from contributory negligence.

It is evident from a reading of the testimony of the plaintiff that but little reliance can be placed thereon; as in all the material points of the case he not only contradicts himself but he is also contradicted by perfectly credible testimony. He says in one place that he was working upon the boiler at the time of the accident; in another that he had quit work. But the evidence conclusively shows that he had been through work for a considerable period of time before the happening of the accident. In one place he states that no wood had been thrown down the ventilator during that day and that he supposed all the wood had been taken in; and in another he says; “ Of course I knew wood was going down.”

In reference to the signal being given he says he was working upon the boiler and did not hear any signal: while, as already said, the evidence is that he had not been working upon the boiler for some time and that the signal was given and that wood had been previously thrown down there and was lying there at the time of the happening of the accident.

We do not see under such circumstances how it is possible to allow the verdict of the jury to stand. Hpon this condition of the evidence the court should have directed a. verdict in favor of the defendants at the close of the case; as where it is apparent that the testimony of a witness is utterly unreliable a verdict should not be allowed to be based thereon.

In stating in this case that the testimony of the plaintiff was utterly unreliable we do not intend to cast any reflection whatever upon his honesty. His memory had undoubtedly been affected as one of the results arising from the accident. And we think that the verdict of the jury shows that they did not believe either that the defendant was guilty of negligence or that the plaintiff had shown himself free from contributory negligence or they

p. 989

would have rendered a larger verdict considering the evidence in respect to the injuries which this plaintiff had received.

Upon the whole.case therefore we are of the opinion' that the judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.

Daniels, J., concurs; Brady, J., concurs in the result