Simpson v. Brooklyn Heights Railroad , 35 N.Y.S. 674 ( 1895 )

Osborne, J.

Plaintiff obtained a verdict against the defendant for damages for injuries sustained by him through the negligence of the defendant. We are now ashed to reverse the judgment in favor of the plaintiff, and the one point presented to us on this appeal, as, ground for a reversal, is that the learned trial judge erred in refusing to grant the motion of the defendant’s counsel, at the close of all the evidence, to x dismiss the complaint on the grounds that plaintifE had failed to establish negligence on the part of the defendant; that plaintiff was guilty' of ’ contributory negligence, .and that the. .preponderance of evidence was in favor of defendant, .and also in refusing to direct a verdict for defendant. ' ■'.

. The case made' by plaintiff was to the effect that on the afternoon of'October 9, 1893, he, in company with others, was riding in a wagon along Myrtle avenue, between' Ridge-wood-and Richmond .Hill, on their way back to Brooklyn, on which avenue defendant operated- cars propelled by dummy - engines. The party was. driving on the right-hand track, and just before, reaching the foot of a hill,, some 400 feet long, they were notified by signal of the approach of a train in their rear. The wagon was driven over to the left-hand track to allow the train in the rear to pass, and, at that time, there was no train in sight approaching on the left-hand track, -and it waszfurther proven that the road bn the right of the right-hand track was rough and unfit for travel. After the train on the fight-hand track had passed, the driver of the wagon • proceeded- to turn back into the right-hand track, -and, ás lie < .. was turning/back; a dummy with cars attached came in sight on the left-hand track'proceeding down the.hill at a high rate of speed, and the tail end. of the wagon was struck by one of the water tanks of the dummy, which projected about fourteen inches over the rail, throwing the plaintiff from the wagon and inflicting the -injuries complained of.

Defendant’s story was that, as the dummy engine going at the rate of ten rii-iles an hour approached the wagón, which was being driven on the roadway to the left of the track, the • driver .of the wagon suddenly turned to the right and attempted' to cross the-track about ten or twelve feet in front of .the engine, and.-that, although the engineer stopped his . engine as quick as he could, he was unable, in spite of Ms 'efforts, to avoid a collision, and he struck the rear part of the wagon. . ■ • ...

There was no such preponderance of evidence in favor of the defendant as would have justified the trial judge in taking the case from the jury; it was plainly his duty to leave to the jury to determine which side was telling the truth, and' in doing so the jury was charged that, if the defendant’s statement of the way the colliison occurred was the true one, the plaintiff could not recover. The jury, by their verdict, have found that plaintiff’s statement as to how.the collision occurred was the true one, and we ■ can see no reasonable ground for , interfering with the conclusion arrived at.

Judgment and order denying motion for new trial must be affirmed, with costs.

Clement, Ch. J., concurs.

Judgment and order affirmed, with costs.