Bernstein v. Roth

Waterman, P. J.

The question, presented, by the record in this case is entirely one of fact. Is the evidence sufficient to sustain the verdict ? In our judgment the jury ought not to have found as they did. We are of the. opinion that the preponderance of the evidence is to the effect that the party driving appellant’s team when the collision occurred, Avas neither in the service of Hr. Bernstein nor engaged in the performance of any service for him; in brief, that he Avas out upon an expedition entirely for his oavu pleasure and without the knoAvledge of appellant. In our opinion, the Aveight of the evidence is that the party driving the team is alone to blame for this accident. He accepts the responsibility and, so far as his testimony can, exculpates appellant. But appellant is pecuniarily responsible and the careless driver (we presume) is not; so appellant has been sued and a judgment has been obtained against him.

The testimony upon all the vital questions is conflicting, and Avhile AAre do not agree Avith the jury in its conclusions, Ave do not feel Avarranted by this record in reversing the judgment in this case. The question of fact was for the jury to decide. Two juries have come to the same conclusion; the amount of the verdict Avas not (for the.injury shoAvn) unduly large, and Ave see no reason for thinking that a materially different result would be reached upon another trial.

The judgment of the Superior Court is affirmed.

Judgment affirmed.

Gary, J.

The only ground upon AArhich I can bring myself to consent to an affirmance of this judgment is that two juries have, in effect, found that the defense is manufactured. If it be, it is wonderfully ingenious in its simplicity. The OAvnership of the horse and wagon by which tire mischief was done could not be denied-; but, it is said, Kahn goes to the place of business of his friend Bernstein, to borrow a horse and Avagon to move the things of his (Kahn’s) mother-in-law. Bernstein is out, and Snyder, his bookkeeper, Avon’t lend; Kahn presumes upon Bernstein’s friendship, and drives the horse and wagon, which stand before the door, away without leave, and in sending back by the boy Shimcrick, the harm is done. That may be true, and great injustice done to Bernstein. Two juries with_ much better opportunity than we can have for judging of the credibility of the story, would not believe it. The jury is the ancient—in England common law, in America constitutional law—tribunal to determine facts.