Butler v. Steinway Railroad — 67 N.Y. St. Rep. 498

Majority

p. 498

John J. Butler, Resp’t. v. Steinway Railroad Company of Long Island City, App’lt.

(Supreme Court, General Term, Second Department,

Filed May 13, 1895.)

Headnote

Appeal — Evidence . .

Though appellate courts interfere cautiously with verdicts where there are no errors of law and only questions of .fact are involved, there will be no hesitation in so doing, where the verdict indicates the presence of misapprehension or prejudice.

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

McDonough & Collins, for app’lt; Eugene L. Bushe, for resp’t.

The verdict in favor of the plaintiff in this action is palpably unjust, and should never receive the sanction of this-court. There are sufficient facts undisputed to convince the judicial mind of the injustice done to the defendant by this judgment The plaintiff entered one of the cars of the defendant with U dog, when he was informed that the presence of the anim'al upon the cars was a violation of a rule of the company, he refused to-remove him. By his persistence in transgressing the rule of the company, he forfeited his right to continue in the car, and conferred upon the conductor the right to remove him therefrom.. The trial judge charged the jury that the conductor had the right to remove the plaintiff from the car, and to use as much force as was necessary for that purpose. That reduced the case to the question whether excessive violence was exerted in the removal of the plaintiff from the car. Upon that question the plaintiff held the affirmative, and the preponderance of the evidence is-against him. The testimony shows that he was perceptibly undér the influence of intoxicating liquor, and such intoxication would naturally obscure his intellect, and destroy his power to recollect, the particulars of the transaction. Independent of his interest, therefore, and his natural enmity, his testimony is very unsatis

p. 499

factory. The testimony, taken together, fails to prove the use of unnecessary" force. He was not struck or kicked, and the conductor manifested no anger. The plaintiff was pushed from the car. He was injured, but his injury was the result of his own misconduct. Appellate courts interfere cautiously with the verdicts of juries where there are no errors of law, and only questions of fact are involved ; but there can be no hesitation in the prevention of injustice. The verdict in this case indicates the presence of misapprehension or prejudice. In our view, twelve fair-minded men, free from prejudice and misconception, will not find, upon the facts of this case, that the conductor of the car used unnecessary violence in the removal of the plaintiff therefrom.

The judgment and order denying the motion for a new trial upon the minutes of the court should be reversed, and a new trial granted, with costs to abide the event.