Lynch v. Nassau Electric Railroad ( 1899 )

WOODWARD, J.

The plaintiff in this action has attempted to establish that while driving a milk wagon upon the tracks of the defendant, on Thirty-Ninth street, in the borough of Brooklyn, his vehicle was struck by a car of the defendant, and that he was thrown to the pavement, sustaining injuries which have made him permanently deaf. The jury before' whom the case was tried have found a verdict in his favor for $10,000.

There was a conflict in the evidence before the jury, the defendant producing witnesses who were wholly disinterested, and who substantially agreed in their testimony to the effect that the collision was not the proximate cause of the injury, but that it resulted, if at all, from a fight between the plaintiff and the defendant’s motorman, after the accident. The evidence in behalf of the defendant is that the car of the defendant came into collision with the milk wagon, being driven by the plaintiff, upon the tracks of the defendant, on a dark morning in November, 1897, before daylight; that the car was running upgrade at the rate of about 5 miles an hour, the plaintiff’s horse moving on a walk; that the motorman saw the wagon when about 25 feet distant, but was unable to stop the car before a collision occurred, throwing the horse down, and injuring to some extent the wagon; that after the contact plaintiff stepped from the wagon, with a boy companion, and began an assault upon defendant’s motorman, in which the latter was struck with a switch iron, and severely cut about the face.; that during the melee the plaintiff and the motorman clinched, the plaintiff falling to the ground, with the motorman on top of him; that soon after the fight was renewed, two brothers of the plaintiff aiding' in the assault upon the motorman, who was severely handled, and was obliged to place himself under the care of a physician.

The learned trial court, in denying the motion for a new trial, writes an opinion in which it says:

“Having seen all the witnesses, and heard the evidence, at the close of the case I was satisfied that the injuries the plaintiff received were the result of a fight with the motorman, instead of the effect of a collision with the car.”

We are unable to understand how the learned trial court could, upon hearing the evidence, come to any other conclusion. This verdict was, we think, against the weight of evidence, and that the jury “obviously strayed from the consideration of the evidence into the domain of speculation” (Colvin v. Railroad Co., 32 App. Div. 76, 52 N. Y. Supp. 698) seems to us apparent; and this case ought at least to be submitted to another jury (Pierce v. Railway Co., 21 App. Div. 427, 431, 47 N. Y. Supp. 540).

The judgment and order appealed from should be reversed, and a new trial granted. All concur, except GOODRICH, P. J., who dissents.