Duffus v. Schwinger , 99 N.Y. Sup. Ct. 70 ( 1895 )

HARDIN, P. J.

Upon the request of the defendants’ counsel at the close of the evidence, the court outlined the leading questions of fact arising in the case which were for the jury to determine. Thereafter the court delivered a very lucid, clear, and elaborate charge to the jury, modestly withholding his own opinion upon the questions of fact which arose in the case, and which were delivered over to the jury to determine, applying the principles of law which have heretofore been announced in the determination of the case. We are asked to disturb the finding of the jury upon several of the questions of fact which were thus stated by the trial judge to the jury. Upon looking into the evidence, we find a sharp and stubborn conflict in the evidence detailed by the witnesses, and, if we were to attempt to reconcile the conflicting statements, we should find great difficulty in doing so. If we were called upon to determine the inferences and deductions to be drawn from the evidence, we should find that it is quite a difficult task to disagree with the conclusions, upon all the evidence, reached by the jury. If, however, we, upon reading the evidence, were of opinion, had we sat upon the jury, we. might have reached a different conclusion from that arrived at by the jury, still it would be our duty to accept the verdict of the jury. Beckwith v. Railroad Co., 64 Barb. 299; Gildersleeve v. Landon, 73 N. Y. 609; Koehler v. Adler, 78 N. Y. 287; Eisenlard v. Clum (Sup.) 22 N. Y. Supp. 574; Halsey v. Hart (Sup.) 32 N. Y. Supp. 666.

.. Appellants ask us to interfere with the verdict as against the weight of evidence. In Morss v. Sherrill, 63 Barb. 21, it was said that, to justify an appellate tribunal in setting aside a verdict, “it must be entirely against the weight of evidence.” And in that case it was further said that a new trial would not be granted where the testimony is contradictory, and the character and credit of the witnesses are questioned, on the ground that the verdict is against the weight of the evidence. In the case in hand we And that there is a severe conflict, and we are of the opinion that the trial judge very cautiously and carefully, upon all the critical questions, pointed out to the jury the bearing of the evidence, and invoked their attention to it in such a way as to challenge a fair conclusion thereupon. The jury saw the witnesses, heard them testify, observed their manner of testifying, ar.d were called upon to determine what credit should be given to the respective witnesses in the light of all that transpired at the trial. According to well-established rules in dealing with the verdict, we think the conclusion pronounced by the jury should be allowed to remain. Chaffee v. Morss, 67 Barb. 252; Brooks v. Moore, Id. 393. Besides the verdict of the jury, we have the approval thereof made by the trial judge after reviewing the same upon a case and exceptions. We have looked with care through the argument of the learned counsel for the appellants, and we are of the opinion that the contention of the defendants against the verdict must fail.

Judgment and order affirmed, with costs. All concur.