Scholl v. Broadway Railroad — 43 N.Y. St. Rep. 770

Majority

p. 770

Barbara Scholl, Resp’t, v. The Broadway Railroad Co., of Brooklyn, Appl’t.

(Supreme Court, General Term, First Department,

Filed February 18, 1892.)

Headnote

Negligence—Submission to jury.

The right of the plaintifi in an action for personal injuries to have the-issue of negligence submitted to the jury when it depends upon conflicting evidence is not affected by the fact that she was the only witness, in her behalf and the defendant examined four witnesses to contradict-her.

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

Action for personal injuries.

Wm. M. Ingraham and Thos. S. Moore, for app’lt; Edward JJDunphy and Hector M. Hitchings, for resp’t.

The counsel for the- appellant states in his printed points, that:

“ The sole question arising upon this appeal is brought before the court by the exception taken to the denial of the motion made to dismiss the complaint upon all the testimony, ‘ on the ground that the evidence "of plaintiff’s negligence is so overwhelming that there is nothing to submit to the jury, and that the absence of the defendant’s negligence has been also proved by an overwhelming weight of testimony,' and also by .the appeal from the order - ■denying a motion for a new trial upon the ground that the verdict was" ‘ against the weight of evidence, contrary to the evidence, and contrary to law.’ ”

It has been repeatedly held, that in an action to recover damages for alleged negligence the plaintiff is entitled to have the issue of negligence submitted- to the jury, when it depends upon " conflicting evidence, or on inferences to be drawn from circumstances in regard to which there is room for a difference of opinion .among intelligent men. Payne v. The Troy & Boston R. R. Co., 83 N. Y., 572 ; Kain v. Smith, 89 id., 884-385.

The mere fact that the sole witness as to the manner in which ■the accident occurred was the plaintiff herself, and that the defendant examined four witnesses, for the purpose of contradicting •her, would not have justified, in our opinion, the withdrawing the •case from the consideration of the jury.

The jury were the sole judges as to the facts, and if they believed the plaintiff’s statement, rather than the evidence of the witnesses on the part of the defendant, it was certainly within their province and power to do so.

There is nothing in the case which tends to show that the jury, in rendering their verdict, were governed by sympathy ór undue Influence, and as the case was submitted to them under a charge to which no exception was taken by either party, we cannot; undertake to interfere with the conclusion which they reached.

The motion for a new trial was properly denied, for the reason that the verdict cannot be said to be against the weight of evidence or contrary, to the evidence or contrary to law; nor under the decisions, can it be said that the damages awarded to the plaintiff were excessive. Fitch v. Broadway & Seventh Ave. R. R. Co., 32 St. Rep., 376 ; Jordon v. N. Y. & H. R. R. Co., 31 id., 670.

The judgment and order below must therefore be affirmed, with -costs and disbursements.

Van Brunt, P. J., concurs.