82 N.Y.S. 25 | N.Y. App. Div. | 1903
The complaint alleges that the defendant on the 9th of November, 1899, hired from the plaintiff for a specific purpose a horse, which he so negligently managed and cared for that one of his legs was broken and he had to be killed; that the value of the horse was $175, for which judgment was demanded.
The defendant admitted the hiring, but denied the other material allegations of the complaint, and alleged as a separate defense that the horse was “ balky; ” that as soon as the defendant discovered that fact he proceeded to return him to the plaintiff; while in the act of doing so, the horse, without any negligence on the part of the defendant, took fright, fell down and broke his leg. The plaintiff had a verdict for twenty-five dollars, which he moved to set aside upon the ground, among others, that insufficient damage had been awarded, which was denied, and he has appealed.
We deem it unnecessary to here consider any question other than
This being the condition of the evidence at the close of the trial, we are of the opinion that the learned presiding justice should have granted the plaintiff’s motion to set aside the verdict as clearly against the weight of evidence. The plaintiff lost his horse by reason of the negligence of 'the defendant. The jury so found, and, this being so, it necessarily followed that the plaintiff was entitled to recover all of the damages which he had sustained, such damages, of course, to be measured by the value of the horse. The only evidence of value upon which the jury could predicate a finding on that subject, taking all of it into consideration, was the amount stated by the plaintiff, viz., $175.
It is true that the credibility of the uncontradicted testimony of a party to an action is usually a question for the jury. So is the credibility of every witness, whether interested or not, but a jury is not at liberty to disregard the testimony of any witness, even though he be a party, who is in nowise impeached, and whose testimony is such that its truth is highly probable. (Denton v. Carroll, 4 App. Div. 532; Elwood v. Western Union Telegraph Co., 45 N. Y. 549; Cunningham v. Gans, 79 Hun, 434; Kelly v. Burroughs, 102 N. Y. 93.) And whenever it does so, then the verdict rendered is not such as the law recognizes and will not receive the sanction of the court when brought under review. It would be a discredit to the administration of justice and tend to bring it into disrepute if any other rule were permitted to prevail. (McDonald v. Walter, 40 N. Y. 551; Brown v. Foster, 1 App. Div. 578.)
The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event of the action.
Patterson, Ingraham and Laughlin, JJ., concurred; Van Brunt, P. J., dissented.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.