Schargel v. United Electric Light & Power Co.

Levy, J. A pure question of fact was here presented which the trial court was entitled to determine as it did. It may well be that had we tried the cause, we might have arrived at a radically different judgment, but we do not consider that we are privileged to substitute the result which we might have reached in place of that of the court below. Indeed, this is now so well recognized in principle that it becomes perfectly needless to cite authority in support of the proposition, except perhaps to say with Mr. Justice Gaynor in McGlynn v. Nassau Electric R. R. Co. (128 App. Div. 866, 867; affd., 198 N. Y. 522): “As little as we believe that it happened, it was for the jury to say.” It seems to us that if the- plaintiff had ventured to furnish in greater or more positive detail the items of description of the truck, etc., we might have been warranted in justly suspecting that his memory in respect to these comparatively unimportant matters was rather unusual and far better than could be expected from one who meets with an unexpected accident. [25] In regard to the so-called physical facts, that is, the width of the truck and the distance in space between the curb and the plaintiff’s Wagon, we might adopt too the language in the McGlynn Case (supra) where Mr. Justice Jenks, speaking for the Appellate Division, took occasion to say: “ I think that the fact that tho witness testified that she waited ‘ a couple of minutes ’ was not necessarily to be taken as a statement that she desisted for 120 seconds in the act of seeking the seat. We all know well that it is common parlance to describe the briefest space of time — a second or a few seconds — by some such expression as ‘ a minute ’ or ' a few minutes.’ ‘ Loosely,’ a minute is ‘ a short space of time.’ (Century Dictionary.) ” Applying this sort of reasoning to one’s estimate of distance or dimension under circumstances that usually attend occurrences of the kind we are considering, of necessity we must come to similar result. A fair preponderance of evidence does not necessarily mean the largest number of witnesses, nor is the judgment against the weight of the evidence because the defendant had the greater number of witnesses, so long as the plaintiff had the probabilities. The judgment should, therefore, be affirmed. Judgment affirmed, with twenty-five dollars costs.