Squilanti v. Metropolitan Street Railway Co. , 60 N.Y.S. 995 ( 1899 )

Conlan, J.

The action is brought to recover for personal injuries as the result of an accident on the 16th day of August, 1898, caused by a collision between a wagon, in which the plaintiff was at the time riding, with one of the cars of the defendant company on Second avenue, near One Hundred and Eleventh street, New York city.

It appeared upon the trial that the plaintiff’s father was driving a single horse and wagon down the west side of Second avenue, between One Hundred and Twelfth and One Hundred and Eleventh streets, and that, when nearing the corner of the street, he saw a brewery wagon, standing in front of a liquor store corner of One Hundred and Eleventh street, from which barrels were being unloaded on the sidewalk, and that, for the purpose of passing by this brewery wagon, he turned in upon the downtown track of the railroad, and, while in this position was struck by a moving car, and both the boy and the father were thrown from the wagon to the ground, and that the plaintiff thereby received the injuries complained of. It is claimed by the defendant that these injuries, whatever they were, were the result of the plaintiff’s own negligence, and that the defendant was free from fault.

The questions of the negligence of the defendant and of the contributory negligence of the plaintiff were both submitted to the jury in a charge which was eminently fair to the defendant and coneededly so, because the trial judge charged each and all of the defendant’s requests, and no exception was taken to the charge as a whole or to any part of it.

There was a conflict of evidence as to how the accident occurred, and the record before us shows that the defendant’s witnesses were not altogether in harmony, one with the other, upon that branch of the-case.

It is not urged by the defendant upon its appeal that the damages awarded are excessive; the verdict was for $100 only.

The jury having, heard the whole case fairly submitted to them and having arrived at their conclusion thereon, we are not disposed to interfere with their determination.

It was exclusively their province to say which was the true version, and we do not think, from an examination of the record before us on this appeal, that they have unwisely determined the same.

The judgment and order appealed from must be affirmed, with, costs.

Eitzsimohs, Ch. J., and McCarthy, J., concur.

Judgment and order affirmed, with costs.