Zwirn v. Joline ( 1910 )

GAVEGAN, J.

The plaintiff in this action is an infant, who at the time of the accident was 3% years old. On the day of the accident he, accompanied by his mother, crossed Clinton street, at about the middle of the block between Rivington and Stanton streets, in the borough of Manhattan, New York City, and went to a toy store on the opposite side of the street, where the mother bought-him a ball, and in “about a second” after, and while she was taking her change, the accident happened.

The evidence shows that the car was standing near the corner of Rivington street when the child left the sidewalk, and when he was on the first rail the car was three houses away. Some one shouted to the motorman, but before the plaintiff was safely across the track the car struck him. The plaintiff was walking like a child and looking straight across- the street. There was a man, not in uniform, on the front of the car, operating it, and a man in uniform inside the car. The car was going fast. There was only one track on that street, and the plaintiff was in the middle of it, betweén the two rails, when struck. This testimony is corroborated by two disinterested witnesses.

The defendants’ motorman, who was in uniform, testified that when the car, which was going about 5 miles an hour, was about 15 feet away, he saw the plaintiff leave the curb and start to run across the street, and when he was in the middle of the track he fell, the car at that time being 6 feet away, and that the car was stopped before it came up to where the plaintiff lay, never striking him at all. The front platform was scarcely over him. This witness was instructing a new man to operate the car, and sometimes necessarily talked to him. This story is substantially corroborated by the new man receiving instructions. One disinterested witness also substantially corroborates the motorman.

Upon this condition of the evidence, the case was submitted to the jury, and a verdict rendered for the plaintiff, which verdict was set aside by the trial judge.

There was presented to the jury a question of fact upon conflicting evidence, and, unless their verdict was so clearly against the weight of evidence as to justify the conclusion that it was arrived at through passion, prejudice or mistake, the trial judge should not have set it aside. I am of the opinion that the evidence was stifficient to sustain their finding, and the judge below was in error in setting the verdict aside. The veracity of the witnesses was a question for the jury, as was also their interest in the result of the case, and it was an improper encroachment upon the jury’s functions to set aside a verdict arrived at upon a question of fact on conflicting evidence. Berkowitz v. Consolidated Gas Co., 134 App. Div. 389, 119 N. Y. Supp. 101.

We do not think that, under the circumstances in this case, the plaintiff or his mother were guilty of contributory negligence as a matter of law, and we think the jury was justified in finding that they sustained 'the burden of proving freedom therefrom. Birkett v. Knickerbocker Ice Co., 110 N. Y. 504, 18 N. E. 108; Moebus v. Herman, 108 N. Y. 349, 15 N. E. 415, 2 Am. St. Rep. 440; McTague v. Dowst, 51 App. Div. 206, 64 N. Y. Supp. 949.

Order setting aside verdict reversed, and the verdict reinstated, with costs. All concur.