Cannarozzo v. New York State Railways

Per Curiam. The case was submitted to the jury as to negligence of defendant• railroad company upon two questions: 1. Were adequate signals given? 2. Was the car being operated at a negligent rate of speed? The jury found for the plaintiff. ' The learned trial court set^ aside' the verdict against the railroad company upon the ground that it was against the Weight of the evidence upon the question of signals. We do not feel justified in interfering with the discretion exercised by the learned trial court upon that question. We feel, however, that the charge .upon the question of negative evidence was more favorable to the defendant than justified. Negative evidence to the effect that a whistle was not sounded is sometimes entitled to greater weight than stated in the charge. If a Witness who was in a situation where he would have been likely to have heard a whistle if one had been sounded, testified that he did not hear one, although not listening for one, his testimony was entitled to consideration even though other witnesses testified that they heard a whistle. (Henavie v. N. Y. C. & H. R. R. R. Co., 166 N. Y. 280; Hintze v. N. Y. C. & H. R. R. R. Co., 149 App. Div. 217.) We are urged by the learned counsel for the appellant to reverse the order setting aside the verdict upon the ground that the evidence presented a fair question of fact as to'whether, under all the circumstances of the case, the motorman was, at the time of the accident and immediately before, maintaining a proper lookout for approaching vehicles. That question was not submitted to the jury, and we cannot, therefore, reverse the order granting a new trial upon that ground. Present — Hubbs, P. J., Clark, Davis, Sears and Crouch, JJ. All concur.' In each case: Order affirmed, with costs.