Moriarty v. Zepp , 42 N.Y. St. Rep. 824 ( 1891 )

Barrett, J.

This is an ordinary action for damages occasioned to the plaintiff by the negligence of defendant’s servant. The plaintiff was returning from his work on the morning of the 21st of September, 1889, when, on alighting from a Second-Avenue car, he was run into by a horse and wagon owned by the defendant, and driven by the latter’s servant. The testimony was preponderating in the plaintiff’s favor, and clearly established the facts —First, that the defendant’s driver was guilty of negligence; and, second, that the plaintiff was entirely free from negligence. The horse and wagon were driven at great speed, and, although the plaintiff was looking about him, he was knocked down and injured before he could see them. The plaintiff’s testimony to this effect was corroborated by a disinterested witness, and it is denied only by the defendant’s driver, who tells us the improbable story that he was driving “very slow,” that his horse was 28 years old, and that the plaintiff got off the Second-Avenue car “suddenly,” while it was in motion, and actually “jumped into” his aged horse. The charge was entirely fair and accurate. Ho exception was taken to it, nor was any exception of any moment taken during the trial. The complaint, it is true, was ungrammatical, but what was meant is plain enough; and when the learned judge permitted it to be amended to conform to the proof, as he had a right to do, we may assume that the proof corrected the bad grammar. The appeal is frivolous, and the judgment should be affirmed, with costs. All concur.