Scott v. General Park, North & East River Railroad — 36 N.Y. St. Rep. 519

Majority

p. 519

Albert Scott, Resp’t, v. The General Park, North & East River R. R. Co., App’lt.

(Supreme Court, General Term, First Department,

Filed January 13, 1891.)

Headnote

Negligence—Charge—Decision on former appeal.

Where the general term on a former appeal reversed the judgment on the ground of an improper ruling, but held that but for the denial of the instruction requested the verdict coul 1 not be disturbed, it is proper for the court on the second trial, upon the same evidence, to refuse a request to charge that the damages should be no more than nominal.

Appeal from a judgment entered on the verdict of a jury, and from an order denying a new trial.

Oharles V. Yates, for app’lt; Hyland & Zabriskie, for resp’t.

This action was previously before this general term, on an appeal from another judgment recovered on a verdict for $500, which is the amount of the second verdict. The facts do not appear to have been changed by the evidence now before the court from what the evidence before tended to prove them. But because of what was then considered an improper ruling by the court at the trial, the first judgment was reversed and a new trial ordered. The case as it was then considered and determined is reported in 53 Hun, 414 ; 24 N. Y. State Rep., 754. As it is now presented there is no ruling on any legal point that can now be made the subject of complaint. The court was asked to instruct the jury that the damages should be no more than nominal. But that could not be done under the opinion adopted by the majority of the general term when the new trial was ordered. For it was thereby held that the verdict could not be disturbed were it not for the denial of the instruction requested, if the evidence of the plairftiff was true, which was for the jury to decide.

As a general proposition the directly conflicting testimony of parties ought to be controlled by that of a reputable, intelligent arid disinterested witness. And there was such a witness who heard and saw what took place between the driver, whose act is complained of, and the plaintiff. Safety in the administration of the law would be most certainly promoted by requiring that evidence to be followed by the jury, when the testimony of the parties themselves is such as to neutralize that of each other. The evi

p. 520

deuce given by the other witness was such as if that should be followed would not sustain so large a verdict as the jury has rendered, but would require another trial of the action to be had. But under what was said in the preceding disposition of this case, that cannot now be had. While the plaintiff probably provoked the injury of which he has complained, as the case was for the juiy, the result of their deliberations must be allowed to stand. The judgment and order should, therefore, be affirmed.

Van Brunt, P. J., and Brady, J., concur.