Swift v. Staten Island Rapid Transit R. R. — 44 N.Y. St. Rep. 747

Majority

p. 747

Sarah A. Swift, by Guardian, Resp’t, v. The Staten Island Rapid Transit R. R. Co., App’lt.

(Supreme Court, General Term, Second Department,

Filed February 8, 1892.)

Headnote

Negligence—Weight of evidence—Variance.

In an action by plaintiff's father based on the same injuries to her, a recovery was had which was affirmed on appeal. In this action the engineer who then testified that the whistle was not blown until plaint iff was struck was not produced, and two witnesses who corroborated him varied their testimony, and a police officer testified that the whistle was blown. Plaintiff's testimony was m harmony with that given by her in the previous case. Held, that a verdict in her favor would not be disturbed.

Appeal from ’judgment in favor of plaintiff, and from order denying motion for a new trial.

Action for inj uries alleged, to have been caused by defendant’s negligence.

Tracy, Boardman. & Plait, for app’lt; James G. Foley, for resp’t.

The appellant concedes that as one action based on this accident was determined in favor of the plaintiff and the re•covery sustained in the court of appeals, see Swift v. S. I. R. T. R. R. Co., 123 N. Y., 645 ; 33 St. Rep., 604 , the same result must follow in the present case unless variations can be found in the testimony given in the actions sufficiently serious to prevent a recovery.

Comparing the testimony given upon the two trials we discover that the engine driver produced by defendants upon the former trial, and upon whose testimony the plaintiff’s recovery may well have been based, was not produced upon the present trial. And two witnesses whose testimony upon the former trial- supported that of the engineer, being called upon this trial by the plaintiff, were stricken with a loss of memory.

And on the former trial the engineer testified that he did not blow the whistle until the engine struck the plaintiff; while on this trial a police officer testified it was blown much earlier. After making all due allowance for these changes, we are of opinion that the testimony warranted the verdict.

The plaintiff testified, and her evidence, if believed, was ample to sustain the verdict.

It is suggested that her injuries have enfeebled her mind, and, therefore, detract from the weight to be given to her testimony.

That is a matter peculiarly within the province of the jury, ¿and, as her testimony on the second trial was in harmony with

p. 748

that previously given, the jury may have considered that sheeompares favorably with the other witnesses.

It is plain that they believed her testimony, and we cannot say they were wrong in so doing.

We find no errors in the admission of evidence, and the judgment must be affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.