Opinion
January, 1905.
George Gordon Battle, for the appellants.
Albert I. Sire, for the respondent.
This action was brought to recover damages for personal injuries alleged to have been sustained by the plaintiff on the 4th of November, 1899, while driving on Amsterdam avenue at or near One Hundred and Seventy-sixth street in the city of New York.
The allegation of the complaint upon which the right to recover was predicated was to the effect that at the time and place named the plaintiff was struck on the head by a piece of rock thrown by a blast put off in an excavation which was being made in Amsterdam avenue by the appellants.
The action was originally brought against the city of New York, the Third Avenue Railroad Company and the appellants, but upon the first trial the complaint was dismissed as to the city of New York and the Third Avenue Railroad Company and the jury disagreed as to Naughton and McMahon. On the second trial the plaintiff had a verdict for $5,000 against Naughton and McMahon and from the judgment entered thereon this appeal is taken.
I think this judgment should be reversed. The testimony of the plaintiff as to the way in which he was injured is so incredible and contrary to reason that the court cannot permit the verdict, which has nothing else to support it except a slight corroboration by one other witness, to stand. He testified, in effect, that between four and five o'clock in the afternoon of November 4, 1899, he was driving a horse attached to a road cart on Amsterdam avenue and when he reached a point near the intersection of One Hundred and Seventy-sixth street he was struck on the head by a rock and stunned; that he lost control of the horse, by reason of which one wheel of the cart went into an excavation some two feet deep, and he was thrown out; that he struck on his head and shoulders; and then, to use his own language, "After I got in the excavation, I still held the lines in my left hand and I grabbed hold of the shaft with my right hand and the horse drew me out, more by the wagon than he did by the reins, and I got back onto my cart and started right down the street. * * * After I got out of the excavation, I remember going south on the street, but how far I went I have no recollection. * * * The last thing I remember the horse was on the vacant lot. * * * I did not have power to drive the horse, but I was riding on the cart, trying to gain my feet; and the last I remember I was riding on the shaft, having hold of the seat and riding between the shaft and the crossbar on the cart; riding on the shaft between the shaft and crossbar and having hold of the seat. This cart did not have a dashboard." He was found in a vacant lot at One Hundred and Seventy-second street and Amsterdam avenue, between six and seven o'clock that evening, lying at the foot of a dump some thirty feet in height, among some rocks, in a semi-conscious condition, and his horse and cart were about 200 feet from him in the same lot, wedged in between two trees. He was taken to a hospital and it was there discovered that he had a depressed fracture of the skull about the size of a half dollar, and that a number of the fragments of bone were driven into the brain, and its outer covering torn; that through this fracture there was a protrusion of the brain about the size of a hen's egg. No explanation was given or suggested as to how the plaintiff came to be at the foot of the dump or the horse and cart in the place where they were found. The cart was uninjured except that one wheel or the axle, or both, were slightly sprung. Not a single witness was produced to corroborate the plaintiff as to his being injured at the time and place named by him, except the witness Synnett, and his testimony, taking his own words, shows that little or no reliance can be placed upon it. He testified that he met the plaintiff on Amsterdam avenue near One Hundred and Seventy-sixth street on the 4th of November, 1899, and, to use his own language, he said: "After he passed me, I walked maybe thirty feet. * * * Then I heard this rumbling noise behind me and I turned around and the men then were still in the ditch. When I turned around, being attracted by this rumbling noise, I saw this man Quigley who had just passed me, down in the ditch with one hand holding on the shaft or some part of the wagon, being dragged out. That was the first I saw him after I turned around. He climbed up onto some part of the wagon and went on and I went on. I never thought or heard or dreamed of it again until four years after. I did not think any more about it. This matter was all brought back to me on 125th Street. I met a subpœna server over there; * * * I said * * * `What are you doing up here?' and he told me he was looking up witnesses for a case that happened up on Amsterdam Avenue. * * * I told him I saw it. * * * When I told him that I had seen this accident, he simply said that he was hunting up witnesses in an accident case that happened up on Amsterdam Avenue." This witness was unable to tell the day when this conversation took place, notwithstanding the fact that he was able to state that it was on the 4th of November, 1899, at a quarter before five o'clock in the afternoon that the plaintiff was thrown into the excavation.
A court, in reviewing evidence upon which a verdict is based, is bound to exercise its intelligence, and in doing so must recognize the existence of certain facts as controlled by physical laws. It cannot permit the finding of a jury to change such facts, because to do so would, in effect, destroy the intelligence of the court. ( Matter of Harriot, 145 N.Y. 540; Elwood v. Western Union Tel. Co., 45 id. 549; Warner v. Western Transportation Co., 5 Robt. 490; Colvin v. Brooklyn Heights R.R. Co., 32 App. Div. 76. )
It may be possible that a person injured as seriously as the plaintiff was could do what he says he did — that is, be thrown from his cart into a trench two feet deep, retain the lines of the horse which he was driving in one hand and grab hold of the cart with the other, be dragged out of the trench and then get up onto the crossbar and there sit until he had been carried several blocks, retaining his consciousness in the meantime, and then be deposited in some way at the foot of a dump thirty feet in height. Whether it be possible or not, it is so improbable that justice demands the matter should be submitted to another jury for its determination.
It follows that the judgment and order appealed from must be reversed and a new trial ordered, with costs to the appellants to abide the event.
VAN BRUNT, P.J., O'BRIEN, INGRAHAM and HATCH, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellants to abide event.