Volkmann v. Coleman

Fitzsimons, Ch. J.

Two points are presented by the appellant: First. That the plaintiff failed to show himself free from contributory negligence. Upon this question it appears from testimony of the plaintiff and his witnesses that, while driving west along Fifty-sixth street, near Sixth avenue, in the city of New York, and while close up against the curbstone of the northerly sidewalk, he was run into by the defendant’s driver, who was' going east at a fast pace. His wagon was broken- and he was severely injured. This testimony the jury believed, as was their right, and it proves that the collision was caused entirely because of defendant’s negligence, and that plaintiff was free from contributory negligence.

Second. That the verdict is against the weight of’evidence. We are satisfied that the jury weighed carefully all the evidence submitted. They choose to believe the plaintiff’s testimony and such other testimony as he produced. His version appears to us to be as truthful, reasonable and probable as is the defendant’s. In this instance the jury had a right to accept the plaintiff’s version, although the defendant produced a greater number of witnesses in his behalf. The verdict was a reasonable one.

The judgment must be affirmed, with costs.

Delehanty and Schuchman, JJ., concur.

Judgment affirmed, with costs.