Reich v. Peck — 63 N.Y. St. Rep. 806

Majority

p. 806

Yette Reich, as Administratrix, etc., Resp’t, v. Henry A. Peck et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed December 10, 1894.)

Headnote

1. Appeal—Conflicting evidence.

A verdict, on conflicting evidence, will not be disturbed, unless the preponderance of evidence is so great as to indicate that it was induced by passion, prejudice or misapprehension.

2. Negligence—Imputable.

It is not a proper case for the application of the rule of imputable negligence, where the facts are insufficient to show that the deceased was in any way responsible for the conduct of his associates.

Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial on the minutes.

Jos. K. Murray, for app’lts ; George A. Mott, for resp’t

The plaintiff in this action is the widow and administratrix of Marcus Reich, deceased, and this action is brought to recover the damages resulting from his death. While the deceased was fishing from a small boat at anchor in Hempstead harbor with two other men, the boat was run down and upset by a schooner belonging to the defendants, and then sailing in the harbor under direction of a captain in the defendants’ employ, and the intestate of the plaintiff was killed. Two questions were involved in the trial of the case: First, whether the deceased was guilty of negligence which contributed to the catastrophe; and, second, whether his death was caused by the mismanagement and negligence of the captain of the vessel. There was testimony introduced on the part of the plaintiff which tended to show mismanagement and carelessness on the part of the captain, and the testimony offered on behalf of the defendants tended to show that the schooner was carefully and properly managed, and that she would have cleared the small boat if a sudden gust of wind had not struck her when she was near it, and driven her upon it. The questions were properly submitted to the jury, and the plaintiff obtained a verdict for $4,500. The defendants have appealed

p. 807

from the judgment, and also from the order denying a motion for a new trial on the minutes of the court; but it is not a case for the interference of an appellate court. It cannot be said that the evidence on behalf of the defendants predominates. The testimony of the captain of the schooner seems to be sufficient to exonerate him from blame; but it was submitted to the jury, and failed to secure the adoption of that body of fact triors. We cannot reverse because we think the verdict might have been the other way. Where no rule of law is violated, and the verdict is supported by testimony, and the preponderance of evidence is not so strong the other way as to indicate the presence of passion, prejudice or misapprehension, the verdict must stand.

The counsel for the defendants requested the trial judge to charge the jury that, “if there was any negligence by his companions in the rowboat which contributed to the accident, such negligence is chargeable, as matter of law, to the deceased, and the plaintiff cannot recover.” That request was denied, and there was an exception. It did not appear from the evidence who owned the boat, or whether it was hired, or how the men came together, or what part each took in the management of the boat, further than that the deceased was in the middle of the boat and did the rowing, Rahm,dropped the anchor, and Riguet was told not to mind anything, and just to sit in the stern of the boat. The facts are insufficient to show that the deceased was in any way responsible for the conduct of his associates in the boat, and it .is not, therefore, a proper case for the application of the rule of imputable negligence. We detect no error in the record, and the judgment and order denying the motion for a new trial should bé affirmed, with costs.

All concur.