Merowitz v. Muttofsky

BIJUR, J.

The learned trial judge, immediately upon the rendition of a verdict for $150, in response to an appropriate motion, set it aside as against the weight of evidence.

[1] A careful perusal of the voluminous record leads me to believe that, had the trial judge enjoyed the same opportunity to review the testimony at leisure and in detail, he would have come to a different conclusion. I cannot but regard the evidence adduced on behalf of the plaintiff as having made out a very fairly convincing prima facie case of negligence chargeable to defendants, arising out of the fact that plaintiff was run over by a wagon bearing an inscription comprising the name, occupation, and address of defendants.

[2] The testimony of defendants respondents themselves, aimed at showing that no wagon owned or operated by them was at the place of the accident, is vague. Their chief reliance was on the testimony of a third party, who claimed to have bought this particular wagon from defendants prior to the accident, and claimed, further, that it was being driven by one of his own drivers, and that he was following it in another wagon at the time of the accident. Respondents claim that this witness’ driver also testified that he saw the accident, in which, of course, he was involved as the primary party; but, on turning to the testimony, it will be "observed that this driver claims that plaintiff came in contact only with the rear part of his (forward) wagon, and that he knew of this fact only because his employer, the chief witness, called out to him, “Stop! you have run over a lady.” His employer, however, is careful—to the point of suspicion—to say that what he called out was, “Stop! I think you have run over a lady.” The employer’s testimony also is so self-contradictory, shifty, and, to my mind, unconscientious, as to warrant its total rejection.

[3] Nevertheless, well-known rules would cause me to hesitate long before venturing to override the judgment of the trial court, were it not for other considerations. This is the fourth trial of the cause. The first verdict for $65 was set aside, ostensibly on the ground of newly discovered evidence, but substantially to enable the presence oían important witness who has inadvertently absented himself from the trial. A verdict in favor of plaintiff on the second trial was set aside as contrary to the evidence and the law, and the order so setting it aside was affirmed in this court. On the third trial, the trial court directed a verdict in favor of defendants, but' subsequently set aside such direction on the ground that there were questions of fact that should go to the jury. It seems to me that this case falls surely within the spirit, if not within the letter, of the reasoning followed by the Appellate Division in McCann v. N. Y. & Queens Co. R. Co., 73 App. Div. 305 , 76 N. Y. Supp. 684 . See, also, Ferguson v. Ferguson, Seld. Notes, 249.

*590 No' question is made about the actual occurrence of the accident or the injuries to the plaintiff, and the verdict cannot be assailed as-excessive.

Order reversed, with costs, and verdict reinstated, with costs, and; judgment directed therefor in the court below. All concur.