Majority
p. 730John Szuchy, by Guardian, etc., Resp’t, v. Hillside Coal & Iron Company, App’lt. (Supreme Court, Appellate Division, Second Department, Filed Feb’ry 11, 1896.)
Headnote
Animals—Vicious—Pboof.The evidence, in an action for injuries inflicted by a vicious mule, was held sufficient to sustain a verdict in favor of plaintiff.
Appeal from a judgment entered on a verdict in favor of • plaintiff, and from an order denying a motion for a new trial.
Stetson, Tracy, Jennings & Russell, for app’lt; Catlin & Nekarda, for resp’t.
—The verdict of the jury was to the effec that the mule was vicious, and was known to be so by the company. The only question we need consider is whether the evidence justified the verdict; The plaintiff’s evidence, if credited by the jury, went
p. 731
to establish both propositions. The motion of nonsuit was, therefore, properly denied. The defendant call several witnesses, who ahowed no hesitation in contradicting the plaintiff. They went so far and so fast that it uvas quite obvious that the jury' distrusted their truthfulness. Some matters to which they testified were highly improbable. For instance, where the superintendent stated that the witnesses coming on together from Pennsylvania to attend the trial did not discuss the facts of the case. Yet one witness on cross-examination admitted that during the journey he ' did talk over the facts with the superintendent. The same witness, when asked if the witnesses, while on the train, all agreed that the mule was one of the best, answered, “If we did, I would not tell you.” The circuit judge felt called upon to instruct the jury that they were at liberty to disregard the testimony of any witness who willfully testified, to what was not true, and that the weight of evidence does not always depend on the number of the witnesses. The circuit judge was satisfied with the verdict. He saw the witnesses. Without having that advantage, we can discover ample grounds why he should not interfere with the verdict It may be noted that the person nearest plaintiff when injured was not produced, nor any person that had ever led the mule, nor any explanation suggested for such neglect. As defendant’s witnesses were all employees of defendant, Hickinbottom v. Railroad Co., 47 Hun, 639 , is in point.
Judgment affirmed, with costs.
All concur.