McSherry v. Peckham ( 1928 )

CAPOTOSTO, J.

This is an action for negligence brought b'y the plaintiff, a pedestrian, who claims to have been injured by an automobile driven by the defendant and proceeding in the same direction that she was going. The action happened on a country road on the Island of Jamestown some time between 9:30 and 10 o’clock in the evening of July 21, 1927. The plaintiff having recovered a verdict for $255, the defendant moves for a new trial.

The weather was anything that the jury chose to make it. According to some testimony, it was a clear night; if this was not believed, then there was evidence to the effect that there was a fog along the shore and adjacent lowlands; if both these views were rejected, then one could find that there was a thick, almost impenetrable fog, enveloping at least that portion of the island which included the road in question.

Eor Plaintiff: 'Sheffield & Harvey. For Defendant: Max Levy.

The evidence on the question of liability was as conflicting as the weather itself. In the absence of positive discrediting circumstances, the jury had a right to believe whatever portions of the testimony it chose to rely upon, even though other reasonable men might make a different choice and thereby reach a different conclusion. This Court sees no reason why the verdict should be disturbed.

Motion for new trial denied.