Opinion
April, 1899.
Zabriskie, Burrill Murray (J. Archibald Murray, of counsel), for appellant.
Blandy, Mooney Shipman (Andrew J. Shipman, of counsel), for respondent.
This is an appeal from a judgment rendered upon the verdict of a jury in favor of plaintiff, and from an order denying a motion to set aside the verdict and for a new trial, on the ground that the verdict is excessive and contrary to the evidence.
The action was brought to recover damages for an assault alleged to have been committed upon plaintiff by one of the defendant's employees while she was proceeding to take passage on one of the defendant's ferry-boats at the foot of Thirty-ninth street in the city of Brooklyn.
The answer denies the several allegations of the complaint.
We have examined the evidence taken on the trial, and find that there was a sharp conflict between the plaintiff and the gateman, called on the part of the defendant, as to what actually did take place on the occasion complained of. It was said in Campion v. Parker, 28 N.Y.S. 828:
"It is a general rule that a new trial will not be granted on the ground that the verdict is against the weight of evidence, where the testimony is contradictory. It is only where the verdict is so clearly against the weight of evidence as to furnish proof that the jury were influenced by passion, prejudice, or mistake, that it should be set aside; it is not enough that the court would have reached a different conclusion from a careful study of the evidence."
We are satisfied that the verdict was not so clearly against the weight of evidence upon this question as to justify a reversal of the judgment. Hardcastle v. Heine, 25 Misc. 146; Millott v. N.Y. N.E.R.R. Co., 64 Hun, 634.
The jury fixes the amount of plaintiff's compensation under a fair and impartial charge from the court, and we are not disposed under all the circumstances to say that it was excessive. Stephens v. Hudson Valley Knitting Co., 20 N.Y.S. 916; Sayles v. Hoetzel, id. 554; Scott v. Sun Printing P. Association, 26 id. 691.
No errors of law were committed on the trial that called for a reversal of the judgment, and the judgment and order appealed from must, therefore, be affirmed, with costs.
O'DWYER, J., concurs.
Order affirmed, with costs.