Opinion
November Term, 1899.
John L. Wells, for the appellant.
Charles J. Patterson, for the respondent.
The plaintiff below, while boarding a moving open car of the defendant, on Hamilton avenue, Brooklyn, had mounted the running board, having his right hand on one of the stanchions and one or both feet on the car, when he fell off, or was thrown off, receiving injuries for which he recovered a verdict; and from the judgment entered thereon and an order denying its motion for a new trial the defendant appeals.
The main contention of the defendant is that the verdict was against the overwhelming weight of evidence, and that the accident resulted from the negligence of the plaintiff in attempting to board a rapidly moving car. The plaintiff died after the trial, and the action has been continued by his widow who was appointed administratrix. She contends that the car had slowed down in response to a signal from the deceased, and that after he had mounted the running board with both feet, the car was suddenly started, the result being that he was thrown off the car and injured
Upon this issue there was much conflict of testimony. For this reason it would have been error for the court to have granted the defendant's motion, either to dismiss the complaint or to direct a verdict for the defendant. It does not follow, however, that the verdict is not subject to review and reversal where the testimony of the defeated party is so excessively preponderating that the court must say that the verdict was the result of passion, prejudice or mistake. This rule is so fully established as to require no citation of authority. But, after a careful analysis of the testimony, we do not arrive at any such conclusion. It is true that the defendant's eye-witnesses of the accident were more numerous than those of the plaintiff, but some of them were more or less inaccurate, and some to a certain extent were interested in the result of the controversy. The present rule and policy of the law in cases of conflicting evidence is to allow all testimony to go to and be weighed by the jury, as the Court of Appeals said in Williams v. Delaware, L. W.R.R. Co. ( 155 N.Y. 158), approving the former decision in People v. Chapleau (121 id. 266).
If the jury gave preponderant weight to the evidence of the plaintiff's witnesses, the verdict was just, and we cannot see anything in the record to create an impression that the verdict evinces the presence of passion, prejudice or mistake.
It follows that the judgment and order should be affirmed.
Judgment and order unanimously affirmed, with costs.