52 N.Y.S. 698 | N.Y. App. Div. | 1898
The only point raised upon this appeal is that the verdict is against the weight of-evidence. The plaintiff was, at the time of
There was evidence in the case tending to establish that the curbstone on which the plaintiff says he struck his head was from ten to thirteen feet from the car, and all of the witnesses for the defendant, some five or six in number, testify that the plaintiff left the car safely while it was either at a standstill, or moving very slowly, and that when from three to five feet from the car he came in collision with a bicycle and was thrown to the ground, and came in contact with the curb, where he received the injuries for which he claims damages from this defendant. It is true, of course, that all of the witnesses for the defense who testify to this version of the accident are employees of the defendant, and that there is some conflict as to, the details, but they all agree that the plaintiff left the car in safety; and his own testimony, that he fell and struck his head upon the curbstone, some thirteen feet from the car, is not inconsistent with the defendant’s theory of the accident, and is not in harmony with his own version.
Keeping in mind that in an action for injuries due to negligence, it is necessary to prove not only that the defendant was negligent, but that the plaintiff was guilty of no negligence contributing to the accident, it is difficult to understand how a jury, considering the evidence in this case, could have arrived at the verdict on which this judgment was entered. Accepting the plaintiff’s own version of the accident, it is not clear that there was any negligence on the part of the defendant. If the car had come to a standstill, and
While the verdict of a jury ought not to be lightly set aside' or disregarded, there are cases, in which the jury has so obviously strayed from the consideration, of the evidence into the domain of speculation, that considerations of justice demand a rehearing before another jury, and this is clearly such a case. The verdict is agaifist the weight of evidence, and could not have been reached through any reasonable contemplation of the facts developed on the trial; and, as was said in the case of Pierce v. Metropolitan Street Railway Co. (21 App. Div. 431), “ Upon the whole testimony we are satisfied that the verdict was flagrantly against the weight of evidence, and.we believe that the ends of justice will be subserved by the.submission of the case to another jury.”
The judgment and order appealed from are reversed, and a new trial granted.
All concurred.
Order denying motion for new trial reversed, and new trial granted, upon the appellant, within twenty days, paying the trial fee and disbursements of the trial; and in case of such payment being made, the judgment appealed from is -vacated. In case of the failureof -the appellant to comply with- the terms aforesaid, the judg. ment and order appealed from are unanimously affirmed, with-costs.