Carp v. Wilson

Dore, J. The verdict of the jury in defendant’s favor is, in our opinion, adequately supported by the weight of the credible evidence. A reading of this record indicates that the defendant’s evidence, through its witnesses Dougan and De Lorenzo, was of far higher quality and more convincing than that of plaintiff’s three witnesses. There is nothing to show that the jury’s verdict evinced partiality, prejudice or passion. There is no such claim. The physiological difficulties with regard to the cause of the death of the deceased are inherent in plaintiff’s theory of how the [166] accident happened, as well as in defendant’s, and the burden was on the plaintiff to show how the accident happened and to prove the negligence as charged. Plaintiff’s witnesses testified that the truck was standing still west of the crosswalk when the deceased left the curb; that the light changed when the deceased reached a point in front of the truck; that the truck began to move, the deceased turned toward the truck, threw up his hands, was struck by the front of the truck, fell backward, and the truck passed over him its whole length and then continued on its way a distance at least equal to the length of the truck, one witness testifying that it went out to the center of St. Nicholas avenue. It was plaintiff’s contention and theory that the axle or the tie-rod joining the front wheels came into contact with deceased’s chest, crushing it and thus causing death. There Were, nevertheless, no external marks upon the body. By its verdict it is clear that the jury did not believe this story, testified to by three witnesses who claimed to have been present and to have seen the accident, although no one of them had given his name to the policeman who appeared almost immediately after the accident. The operator of the truck, Dougan, and his helper, De Lorenzo, testified that the deceased was not in front of the truck. The court clearly pointed out to the jury that the issue was whether the deceased was struck by the truck or walked into the side of it, that the burden was on the plaintiff to establish defendant’s negligence, and properly left the issues of fact on conflicting testimony to the jury. The jury resolved such issues in defendant’s favor. The court throughout the trial and in the charge to the jury was eminently fair to both sides, and we find no prejudicial reversible error. The judgment should be affirmed, with costs. Martin, P. J., and Townley, J., concur; O’Malley and Cohn, JJ., dissent and vote to reverse and grant a new trial.