Taylor v. Glens Falls Automobile Co.

Smith, P. J.: This action is brought to recover damages for plaintiff’s injury caused, as she claims, by the negligence of the defend [443] ant in running her down with an automobile. A new trial has been granted apparently upon the ground that the evidence is not sufficient to establish any cause of action against the defendant. The plaintiff, with others, was in a sleigh going from Glens Falls to Lake George; the harness broke and the driver turned up to the side of the road and got out to fix the harness. There is some dispute as to whether he was upon the right or left side of the road going north, but the preponderance of the testimony would seem to indicate he was upon the left side of the road and within three or four feet of the fence. The stop was made at a fork of the road where the road to Luzerne branches off to the west. The plaintiff and another got out of the sleigh, as it may be found, because of their fear of the automobile approaching, of which they were warned by the lights. They went to what is called Howe’s blacksmith shop, which was in the space in the fork of the two roads leading to Lake George and Luzerne.. This blacksmith shop was from twelve to fifteen feet from the Luzerne road and twenty feet from the Lake George highway. The claim of the plaintiff is that within five feet of this blacksmith shop — where she had gone for safety — the automobile came up behind the sleigh and turned to the left and ran her down. She was struck by the automobile, carried a couple of feet and went under the automobile, from which place she was afterwards taken by raising the automobile. She claims to have suffered certain injuries by reason of this accident, for which the jury have given her a verdict of $900, which the court has set aside. There is abundant evidence from which the jury could have found that the plaintiff was struck while outside of the road and within a very few feet of the blacksmith shop, and from which the jury could have found that the automobile was driven at an excessive speed, so that it was compelled to turn into this Luzerne road for the purpose of avoiding collision with the sleigh. The defendant’s car was not going to Luzerne but was going straight on, and the jury may well have found that the sudden turn into this Luzerne road was made necessary only because the car was not under sufficient control to keep upon the road and “avoid the accident. [444] The learned trial judge submitted to the jury two questions of negligence: First, the question of excessive speed. The plaintiff had sworn in her judgment that the car was going from thirty to thirty-five miles an hour, but had stated that she could not tell positively because she was not accustomed to judge of the speed of cars while standing upon the ground. No other witness swore to any specific rate of speed, but all of the plaintiff’s witnesses agreed that the speed was not at all diminished until the car got right upon them, when it was turned into the Luzerne highway. Another ground submitted to the jury was whether the accident was caused by the failure of the defendant’s servant to have the car under proper control. The order vacating the verdict does not state the ground upon which the same was vacated. In the opinion which accompanied the order, however, the trial justice says that in his judgment it was incredible that the car, going at the rate of thirty to thirty-five miles an hour, could make the sudden turn which appears was made and stop within ten or twelve feet upon the Luzerne road. He further states: “It is impossible for me to see how any automobile going at an excessive rate of speed can make a turn at a right angle and remain upon its wheels, or be stopped within ten feet of the turn.” He further says that when the charge of excessive speed is eliminated from the case there is no other ground remaining upon which to support a verdict. By fair interpretation of the evidence the automobile did not turn at right angles but on a curve. It came, under defendant’s evidence, within four or five feet of the shop which by the map is twenty-three feet west of the sleigh if the sleigh were on the west side of the road. There is evidence that the car was within ten feet of the side of the road when it stopped. It might well have gone a considerably greater distance, however, after the brakes were applied before coming to that point. As I read his opinion, if this case should be retried upon 'this same evidence the trial court would be compelled to grant a nonsuit. When this car came up behind plaintiff’s sleigh the lights should have revealed the existence of the sleigh. The defendant’s servant may have been negligent in failing to observe this obstacle in time to get his car under control; any speed may be excessive speed which is so [445] great as to prevent the driver from getting his car under control' when he approaches an unknown danger. It is true that the chauffeur swears that he had his car under perfect control and turned into this Luzerne road for the purpose of stopping to see if he could aid the driver of the sleigh who was in apparent trouble. Some doubt is thrown upon this testimony by the improbability of his turning off into a side road for the purpose where he would have to back up to get into the road proper leading to Lake George in order to continue his journey. In any event his explanation of the circumstances was for the jury in view of all the other facts in the case, because he was interested as having been the one at fault if the defendant be charged with damages in the action. The crucial fact remains that plaintiff was run down by this car while lawfully either in the edge of the highway or beyond its bounds. In my judgment it will always be a question for the jury whether the accident was not caused by the negligence of the defendant in failing to have the car under proper control at whatever speed it was running as he approached this sleigh. This is the second verdict of a jury in favor of the plaintiff. It has been a rule in this department that the Appellate Division will be very slow to reverse the trial judge in the granting of a new trial where he has exercised his discretion in so doing. He has opportunity to see the witnesses, and if he be of the opinion that an injustice has been done he should properly exercise his discretion, and this discretion should probably be exercised more often than it is. Not only does this court have the power but it has also the duty to review the discretion of the trial judge. But in this review the fact is recognized that the trial judge has a view point superior to that of the appellate court by his better opportunity at the' trial to judge of the credibility of the evidence and the justice of the verdict, and due weight is given to that fact. While this rule has been adhered to with reference to the granting of a new trial after a single verdict it has less force when applied to the granting of a new trial after a second verdict; and where, as in the case at bar, a new trial has been granted, apparently not because the verdict is against the weight of evidence but as without evidence, the rule would seem to be [446] inapplicable. The trial judge in his opinion granting the new trial has stated that no bones of the plaintiff were broken and no.serious injuries were sustained; and this was apparently one of the grounds upon which the new trial was granted. With his opportunity to see and hear the witnesses, and judge of the credibility of their stories, and with the fact that upon a former trial a verdict of $500 only was obtained, the size of the verdict would seem to be sufficient reason for disapproving of the verdict. Without anything to indicate, however, that the plaintiff would not recover upon another trial, and in view of the fact that two juries have assessed her damages at $500 or more, we are of the opinion that if the plaintiff will stipulate to reduce the verdict to $500 the verdict, as thus reduced, should be allowed to stand. The order should be affirmed, with costs, unless plaintiff stipulates to reduce the verdict to $500; if she shall so stipulate, the order is reversed, and the verdict, as thus reduced, reinstated, without costs to either party. Howard and Woodward, JJ., concurred; Lyon, J., dissented in opinion, in which Kellogg, J., concurred.