Moriarty v. Zepp — 42 N.Y. St. Rep. 824

Majority

p. 824

Henry Moriarty, Resp’t, v. William Zepp, App’lt.

(Supreme Court, General Term, First Department,

Filed December 31, 1891.)

Headnote

Negligence—Master and servant.

In an action for personal injuries, the plaintiff testified that he alighted, from a street car, looked about him, and was immediately run into and knocked down by a horse and wagon belonging to defendant, which were being driven at great speed, and he was corroborated by a disinterested witness. Defendant’s driver testified that he was driving very slow; that his horse was old and that plaintiff jumped into him. Held, that the evidence preponderated in plaintiff’s favor, and that a judgment against the defendant would not be disturbed.

Appeal from a judgment in favor of the plaintiff entered upon a verdict rendered at circuit.

Fdward B. La Fetra, for resp’t; Sutherland Tenney, for app’lt

This is an ordinary action for damages occasioned to the plaintiff by the negligence of defendant’s servant.

The plaintiff was returning from his work on the morning of the 21st of September, 1889, when, on alighting from a Second avenue car, he was run into by a horse and wagon owned by the defendant and driven by the latter's servant The testimony was preponderating in the plaintiff’s favor, and clearly established the facts, first, that the defendant’s driver was guilty of negligence, and, second, that the plaintiff was entirely free from negligence. The horse and wagon was driven at great speed and, although the plaintiff was looking about him, he was knocked down and injured before he could see them. The plaintiff’s testimony to this effect was corroborated by a disinterested witness, and it is denied only by the defendant’s driver, who tells us the improbable story that he was driving “ very slow,” that his horse was twenty-three years old, and that the plaintiff got off the Second avenue car “ suddenly ” while it was in motion and actually “ jumped into ” his aged horse.

The charge was entirely fair and accurate. No exception was taken to it nor was any exception of any moment taken during the trial. The complaint, it is true, was ungrammatical, but what was meant is plain enough, and when the learned judge permitted it to be amended to conform to the proof, as he had a right to do, we may assume that the proof corrected the bad grammar.

The appeal is frivolous, and the judgment should be affirmed, with costs.

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