Berkowitz v. Consolidated Gas Co.

McLaughlin, J.: On the 21st of April, 1908, the plaintiff, a lad then about fifteen years of age, was a passenger on one of the horse cars of the defendant railway. As the car was proceeding around a curve at or near the junction of the Bowery and Spring street he was thrown from it and sustained personal injuries, and this action was brought to recover damages therefor. In his complaint he claimed the injuries sustained by him were due to the joint negligence of the defendants. The specific act of negligence alleged was the car colliding with a cart of the gas company. At the trial, that the plaintiff was injured and that a collision did occur was not disputed, but that the plaintiff was thrown from the car, or sustained the injuries of which he complained, by reason of the negligence of the defendants or either of them were substantially the only questions litigated. At the close of the plaintiff’s case the complaint was dismissed as to the railway company and the trial continued as to the gas company, at the conclusion of which the question as to whether the damages sustained by the plaintiff were due to the negligence of [391] tile driver of the cart belonging to the gas company was submitted to the jury. The case was properly submitted to the jury. Questions of fact were presented which necessitated that should be done. These questions were: (1) Whether the collision was due to the negligence of the employee of the gas company; (2) whether the collision was the cause of the plaintiff’s being thrown from the car, and (3) whether his being thrown from the car was not due to his own negligence. The jury rendered a verdict of no cause of action, which the trial court, on motion of plaintiff’s counsel, set aside and granted a new trial. From this the gas company appeals.- The respondent’s counsel seeks to sustain the order solely upon the ground that the learned justice sitting at the trial was justified in setting the verdict aside on the ground that it was against the weight of evidence, and this, it seems to me, is clearly untenable. The questions of fact above stated were presented at the conclusion of the trial, and from the evidence bearing thereon the jury might legitimately draw different inferences. They resolved them in favor of the gas company, which they had a right to do. The plaintiff did not see fit to call either the conductor or driver of the car, and the testimony of the driver of the cart of the gas company, if believed by the jury, fairly tended to show that the collision was due not to his, but the negligence of the driver of the car. So that if it be assumed that the accident was caused by the collision of the car and the cart of the gas company, and that the plaintiff himself was free from negligence, the jury may very well have concluded that such collision was not due to any negligence on the part of the gas company’s employees. That an appellate court, if it were to pass upon the facts, might find in a way different from what the jury did, is no justification for setting aside their verdict on the ground that it is against the weight of evidence. When that is done the court must be able to see that the verdict is the result of passion, prejudice or corruption, or that the jury has made a mistake in considering and weighing all the evidence in the case. Here, the issue between the parties was fairly tried and submitted to the jury. No complaint is made of the charge, nor is it suggested that any errors were committed during the trial which call for reversal of the judgment. I am of the opinion that the evidence fairly sustains the verdict, [392] and for that reason the order appealed from should be reversed, with costs, and the verdict reinstated. Patterson, P. J., and Ingraham, J., concurred; Laughlin and Scott, JJ., dissented.