105 N.Y.S. 968 | N.Y. Sup. Ct. | 1907
The inutility of setting aside verdicts as against the weight of evidence has been established by long experience. The hooks are full of instances where two,
In the case at bar the plaintiff produced" no eyewitness to the accident, but Baril, one of his witnesses, sáw the infant upon the ground in the driveway immediately before the team entered and saw his dead body almost immediately thereafter on the ground in the rear of the wagon. The trial court was of the opinion that the testimony. of this witness, in conjunction with the other testimony and the surrounding circumstances, required a submission of the facts to the jury. McDonald v. Metropolitan St. R. Co., 167 N. Y. 66. Without a contrary decision of that question it is hardly to be expected that a retrial will result in a different verdict. On a retrial the court would be expected to follow the decision, of the first trial 'on this question, and it, therefore, seems useless to have a retrial until that question has been passed upon by a higher court.
I have examined the record with some care and find nothing which indicates that the verdict was influenced by any improper matter or circumstance. The objections made by defendant’s counsel to certain remarks made by plaintiff’s counsel in his address to the jury were sustained by the trial court, and the jury on each occasion specifically charged to disregard such remarks. Unfortunately the stenographer’s minutes fail to set forth the remarks of the
Motion denied.