Kellegher v. Forty-second Street, Manhattanville & St. Nicholas Avenue Railway Co.

O’Brien, J.:

Two questions are principally urged upon our attention upon this appeal; the first relating to the weight of evidence and the second to an error claimed to have been committed by the learned trial judge in his charge to the jury.

^ Although it here appears that the number of witnesses produced by the defendant exceeds those of the plaintiff, that is not necessarily a controlling factor in determining the preponderance of evidence. The appearance, the manner of testifying, the attitude of a witness, whether friendly or unfriendly, as well as the point of view from which he saw the accident, are, with other things, to be considered by the jury in determining the weight or credibility to be given to his testimony. And the verdict of a jury should not be disturbed except in a case where it clearly appears that the conclusion reached is against the weight of evidence. Here, though the number of witnesses for defendant is greater, we have, on the part of the plaintiff, her own positive statement corroborated by the equally positive evidence of a woman who was with her and who was in a position to see and know j.ust how the accident happened. •

On the other hand* the defendant’s witnesses are not in entire accord as to the place where or the manner in which the accident happened. Some, for instance, say that they saw the plaintiff as the car approached her and before it stopped, while others had their attention directed to her only'after she had attempted to board the car. One witness stated she had got on the car and between the seats, whilst another says she remained standing on the footboard, the car being crowded. We cannot conclude, as matter of law, that such evidence, though given by a greater number of persons, outweighs that of two witnesses whose version of the accident is neither improbable, unreasonable nor inconsistent.

With respect to the charge, were it not for an expression or characterization as to the act of the conductor in blowing his whistle to start the car while the plaintiff was boarding it, no fault is or could be found with it. Taken as a whole, it fairly and clearly summarized the facts and stated the law bearing upon the questions of defendant’s liability. After saying that the burden was upon the plaintiff to establish by a fair preponderance of evidence her freedom from negligence and the negligence of the defendant, the learned trial judge, in speaking of the act of the conductor referred to, said that “ was a negligent act and such an act as may warrant a cause of action on behalf of the plaintiff. It is the claim of the plaintiff that, before she was able to get fairly onto the car, the car suddenly started — threw her off. If that is the fact, if that is the way it happened, if before she had got upon the car, and while still upon the step, the conductor blew the' whistle, and the car suddenly started, and by that sudden movement of the car she was thrown from the car, that is an act of negligence, I repeat, on the part of the defendant’s servant, and, every other element necessary to the plaintiff’s recovery being established, it is sufficient to call for a verdict in behalf of the plaintiff.”

Considering this language in connection with what was said in other parts of the charge, it is reasonably certain that the jury was not misled into regarding it as a statement that the act of the conductor so characterized was negligence as matter of law which rendered the defendant liable, but that it was evidence from which the jury could reasonably infer that defendant was negligent. Thus, the characterization that it was a negligent act was followed, as will be noticed, by the statement “ such an act as may warrant a cause of action on behalf of the plaintiff,” and a fair reading of the words following, which we have quoted, justifies a similar construction.

It will be noticed that the trial judge did not take away from the jury the right to determine the facts, and even if we should construe the language — as contended for by the appellant — as a statement by the court that upon. such facts being found, the-act of the conductor as ■ matter of law was negligent, it remains to be determined how far such a statement would be error. The rule is, that where different inferences may be drawn from the facts, it is the province of the jury, and not of the court, to draw them.' '(Morrissey v. Westchester Electric R. Co., 18 App. Div. 67; Salt Springs Nat. Bank v. Sloan, 135 N. Y. 371; Dolan v. Delaware & Hudson Canal Co., 71 id. 285.) In the Morrissey Case {supra), where the court stated that if the jury found that the accident -occurred, as the plaintiff testified it did, the defendant was guilty of negligence, it was held that such a direction was error “unless the adoption of liis testimony as true would exclude all inferences to the contrary.” This,' as well as the other cases cited, supports the rule that the facts aré to be found by the jury, and it is only where the facts so found will' justify but a single inference that the -court is warranted in directing the jury as matter of law to draw such inference. Here the court did not go to the extent of charging' that if they believed the plaintiff," then, as matter of law, the defendant was guilty of negligence; but had the court so charged, we are not piApared to hold that it would have been error. On the contrary, it was held in Kleiner v. Third Avenue R. R. Co. (162 N. Y. 193), as stated in the 'syllabus, “ It is not error for the trial court to charge, in such an action, that if the jury believe that "the accident happened -in the manner described by the defendant’s witnesses; their- verdict must be for the defendant, and if "they believe it occurred in the. manner described by the plaintiff and her witnesses, she "is entitled to recover,-since it leaves to the jury the determination1 of all t-lie facts;” and it was said in the opinion, referring to the case of Dolan v. Delaware c& Hudson Canal . Co. {supra), “ that' case and the other decisions cited are clearly distinguishable from the case at bar. In those cases the request to charge referred to the testimony of a witness, and" then the court was asked to charge that if the jury believed that witness, they must find in a certain way or that a certain legal Conclusion would follow. Here that was not the request or charge, but it was that, if the jury believed the accident occurred in the manner described by her witnesses, then the plaintiff wus entitled to recover, which was equivalent to charging that if the facts claimed by her were established" and* found by’ the-'jhry, she was entitled to a verdict. This involved a determination by the jury whether they would believe «the evidence of the plaintiff’s witnesses or that of the witnesses for the defendant wherever there was a conflict.”

In .the case at bar the plaintiff testified that after stopping the car and while in the act of getting on and before she had reached a place of safety, the conductor blew the whistle, and, in starting the ■car, threw her off. It is suggested that the inference of defendant’s negligence, as matter of law, would not arise from such facts if proved, because it might be that the conductor did not see her or •did not know of her position on the car when he blew his whistle.

Regard being had, however, to the rights of a person who, after the car has stopped, is attempting to board it, the obligation is -on the conductor to see to it that such person has secured a reasonably safe foothold or position on the car before the signal to start is given. If we take the plaintiff’s statement of what the conductor here did as true, his act was certainly a negligent one, for the consequences of which, Unless it was refuted, explained or justified, the defendant would be liable. It is unnecessary, however, for us to go to this length for the reason that we think the question which the appellant seeks to raise is not presented by the record, our conclusion being that a fair inference from the whole charge is that the court left the facts to he found, and the inferences therefrom to be drawn, to the jury, and that from the language employed, they could not have been misled or have received an erroneous impression of what was their duty and their province in passing upon the question of defendant’s liability. Although it is well in negligence . cases to avoid characterizing as negligent the act or conduct of parties or witnesses, we do not think that what was here said by the trial judge was such error as would justify a reversal.

The judgment and order accordingly should be affirmed, with costs.

Rumsey and Patterson, JJ., concurred; Van Brunt, P. J., and McLaughlin, J., dissented. •