Resnick v. Joline ( 1909 )

BISCHOFF, J.

The plaintiff called two disinterested witnesses, ' who testified to the happening of the accident under circumstances, which clearly imported negligence of the car driver as the sole cause. We fail to find that the testimony of these witnesses was in any sense contradictory upon a reasonable construction, and this court would not be justified in directing a new trial upon the theory that the preponderance of evidence was with the defendants, merely because a disinterested witness corroborated the driver and conductor in their account of the accident itself. Neither story was inherently improbable, and the issue was distinctly one of simple credibility.

Upon the question whether the child’s parents used due care in guarding him, the proof supports a reasonable inference that his momentary escape from control was due to no lack of ordinary vigilance upon their part in causing him to be guarded and attended; and, so far as error is asserted in the reception of evidence of the causal connection between the accident and the injuries, the objection taken to the hypothetical question was too general in form to present the point now sought to be raised, and, indeed, the expert evidence referred to, as to the probable causal connection, was competent. Wagner v. Railway Co., 79 App. Div. 594, 80 N. Y. Supp. 191; Bruss v. Railway Co., 66 App. Div. 559, 73 N. Y. Supp. 256.

Judgments affirmed, with costs. All concur.