Schapierer v. Third Avenue Railroad

—This action was brought to recover for damages alleged to have been sustained by plaintiff while a passenger on the cars of defendant’s company, on the 25th day of July, 1889, by reason of the carelessness and negligence of defendants, its .agents and servants.

The action was tried before Justice Van Wyck and a jury on the 11th day of November, 1890, and the jury rendered their verdict in favor of the plaintiff for the sum of $850. The defendants made a motion on the 12th day of November, 1890, before ■Justice Van Wyck to set aside the verdict and for a new trial; on the minutes, and exceptions taken in the case and further, upon the ground that the verdict was against the law, and the evidence and the weight of evidence, which motion was denied. Defendants thereupon appealed from the judgment herein, ■and from the order denying the motion for a new trial.

The plaintiff was examined as a witness on his own behalf, no other evidence being offered on his part, and rested.

Defendants examined one David Salter, the conductor in ■charge of,-and one James Wells, the driver of, the car at the time plaintiff sustained the alleged injuries, and rested.

The trial judge thereupon charged the jury, who rendered their verdict in favor of plaintiff.

The issues raised by the pleadings and tried were issues of fact ■only. The evidence of -the witnesses on the part of the defendants was contradictory to the evidence of the plaintiff on many material points. The trial justice in his charge fully and fairly ■submitted the case to the jury, calling its attention to the evidence ■of each of the witnesses; that plaintiff must prove his case by a preponderance of evidence; fully instructing the jury as to the meaning of the word preponderance, and also charged them upon the question of negligence and contributory negligence. No exceptions were taken by defendants to the charge, and the jury rendered its verdict on a conflict of evidence.

The uncontradicted testimony of the plaintiff shows that he is a married man, a tailor, and works for himself; that he was hurt about his ankle and that his leg was broken; that he was taken by an ambulance to the Chambers Street Hospital, where he remained until next morning, after which he was taken to Bellevue Hospital, and from thence taken to the Charity Hospital, where he remained eight weeks; that he suffered much pain; that he still suffers pain and that he is not able, even at the present time, to work.

The defendant’s witness, Salter, was asked on cross-examination :

“Q. Was he in pain? A. Apparently, he was, because he was moaning. ”

The jury, by their verdict, found, as a matter of fact, that the plaintiff was entitled to recover damages,- and we do not think, under the circumstances, that the amount they awarded him was excessive. It was the province of the jury to pass upon the entire evidence, .to consider how far any interest the witnesses might have, if any, which might influence their verdict; to give the evidence of each witness such weight as they considered it entitled to, and the jury had a perfect right to disbelieve either of the witnesses unless such witness was corroborated.

The policy of our law tends to make the jury the sole arbiters of conflicting evidence, and hence their verdict ought, as a rule, be accepted as conclusively establishing the disputed questions they are called upon to decide. The jury have settled the facts in this case adversely to the defendants, and we can see no good reason why we should disturb their verdict. Where the evidence is conflicting, and the motion for a new trial has been denied, the judgment on the verdict will be affirmed. Halpin v. Finch, 24 N. Y. State Rep , 884.

There is no merit in any of the exceptions taken by defendants’ counsel.

The judgment and order appealed from must, therefore, be affirmed, with costs to the respondent.

McCarthy, J., concurs.