Volkommer v. Nassau Electric Railroad

WOODWARD, J. Upon a previous trial of this action, which is brought to recover damages for personal injuries due to the alleged negligence of the defendant, the jury found for the plaintiff, on which a judgment was entered for $16,875. On appeal to this court the facts were considered, and we came to the conclusion that, “We are not prepared to say that there was any error committed at the trial which would authorize us to set aside the verdict,” and that “the order denying the defendant’s motion for a new trial on newly-discovered evidence should be reversed, and a new trial granted, upon defendant’s paying to the plaintiff, within ten days, the trial fee and disbursements of the trial, and one-half of the extra allowance granted by the court, in which case the appeal from the judgment is dismissed, without costs; but, if the defendant fails to make such payment within the time aforesaid, then the judgment and orders appealed from should be affirmed, with costs.” 23 App. Div. 88, 48 N. Y. Supp. 372. The defendant has had a second trial, with an opportunity to avail itself of all the newly-discovered evidence, and the jury has a second time found the facts in favor of the plaintiff, and' has returned a verdict for $15,000. The 1151 case presents no exceptions worthy of serious consideration, and, although the damages are large, we cannot, in view of the fact that two juries have reached substantially the same conclusion, and of the practical affirmance iipon the former appeal, consent to a modification of the judgment. The judgment and order appealed from should be affirmed, with costs.