Gallup v. Bessling ( 1910 )

GUY, J.

This is an appeal from an order setting aside the verdict of a jury in favor of the plaintiff. The facts show that the plaintiff was propelling a push cart along Hester street, near Forsythe street, in the borough of Manhattan, and while so doing was run down and injured by the defendant’s horse and wagon. The plaintiff’s witnesses testified that the defendant’s servant drove over and upon the plaintiff, notwithstanding the fact that he had been given sufficient- warning to stop his horse and avoid the accident. The defendant relied for his defense upon the testimony of his servant, the driver.

The case was submitted to the jury, and the jury’s verdict was in favor of the plaintiff. The judge set aside the verdict of the jury without giving any reason therefor. There is nothing to' show in this record that the verdict was the result of passion, prejudice, or corruption, or that the jury had made any mistake in considering or weighing all the evidence. In Berkowitz v. Consolidated Gas Co., 134 App. Div. 389, 119 N. Y. Supp. 101, it was said by McLaughlin, J.:

“That an appellate court, if it were to pass upon thfe facts, might find in a way different from what the jury did, is not justification for setting aside their verdict on the ground that it is against the weight of evidence. .When that is done, the court must be 'able to see that the verdict is the result of passion, prejudice, or corruption, or that the jury has made a mistake in considering and weighing all the evidence in the case. Here the issue between the parties was fairly tried and submitted to the jury. * * * I am of the opinion that the evidence fairly sustains the verdict, and for that reason the order appealed from should be reversed, with costs, and the verdict reinstated.”

The order appealed from should be reversed, and the judgment reinstated, with costs. All concur.