Solomon v. Joline , 125 N.Y.S. 1102 ( 1910 )

GAVEGAN, J.

The evidence shows that on the day of the accident a driver in plaintiff’s employ was driving plaintiff’s two-horse team and truck westerly through Fortieth street in the city of New York. When he reached Eighth avenue a car was coming south on the westerly track. As the driver drove his horses upon the first or easterly track the car was about three-quarters of a block away and coming slowly. Plaintiff’s driver proceeded slowly across the westerly track, and when his horses had cleared it with the truck still upon the track and the car about five feet away, defendants’ motorman was applying his brakes for the first time. Before the plaintiff’s truck had cleared the westerly track the car collided with it causing the damage, to recover which this action was- brought. The testimony' of the driver’s helper was substantially corroborated by a disinterested witness. Defendants offered no proof, but rested upon their motions to dismiss the complaint. Upon this state of the evidence the case was left to the jury, and the plaintiff had a verdict, which was set aside by the learned justice presiding at the trial. There was presented to the jury a question of fact. The veracity of the witnesses, their interest, and the probabilities of plaintiff’s case were for the jury to determine, and it was error to set aside the verdict unless it was so clearly against the weight of the evidence as to justify the conclusion that it was arrived at through passion, prejudice, or mistake. Berkowitz v. Consolidated Gas Co., 134 App. Div. 389, 119 N. Y. Supp. 101.

We think under the evidence, standing as it does uncontradicted, there was proof of defendants’ negligence and freedom from contributory negligence of plaintiff’s driver sufficient to justify a verdict for the plaintiff, and the verdict should be reinstated. Hergert v. Union Ry. Co., 25 App. Div. 218, 49 N. Y. Supp. 307.

Order reversed and verdict reinstated, with costs to appellant in this court and in the court below. All concur.