184 A.D. 467 | N.Y. App. Div. | 1918
On May 5, 1915, the plaintiff, who resided in an apartment house owned by the defendant, was in the hall on the ground floor, standing on the lower steps of the stairs, with one hand
When plaintiff rested at the trial, and again at the close of the testimony, defendant moved to dismiss the complaint on the ground that no negligence on the part of defendant had been shown and that plaintiff’s injuries were caused by fright alone. The learned judge who presided reserved his decision without objection by either party, and submitted the case to the jury. He charged, in substance, that if plaintiff’s fall and consequent injuries were the result of fright! she could not recover, but if her fall was caused by the shaking of the stairs, due to the negligence of defendant, she could. The jury found for plaintiff, assessing the damages at $2,500. On motion by defendant the verdict was set aside, and the motion to dismiss the complaint, the decision of which had been reserved, was granted. From this order setting aside the verdict and from the judgment entered on the dismissal of the complaint, the plaintiff appeals to this court.
The first question presented is whether it was error to dismiss the complaint. In deciding this we must, under a familiar rule of law, take that view of the evidence most favorable to the plaintiff. The court did not declare upon what theory the complaint was dismissed; but as the inference of negligence on the part of the defendant and freedom from contributory negligence on the part of the plaintiff flowed naturally from the facts established by undisputed evidence, it must have been on the theory that plaintiff’s injuries were caused by fright, for which the defendant was not responsible, under the doctrine of Mitchell v. Rochester Railway Co. (151 N. Y. 107) and Hack v. Dady (142 App. Div. 510). But not only was there testimony by plaintiff that her fall was the result of the physical disturbance of her support, caused by the fall of the door, but we think the case did not fall within the doctrine of the cited cases, but rather within that of Cohn v. Ansonia Realty Co. (162 App. Div. 791) and Wood v. N. Y. C. & H. R. R. R. Co. (83 id. 604; affd., 179 N. Y. 557).
The learned trial judge took the verdict and then set it aside and dismissed the complaint in an effort to create a condition where a final decision might be reached by reinstating the verdict if, on appeal to this court, it should be decided that the dismissal was error. The result does not necessarily follow. On an appeal from a judgment of nonsuit, the question is whether there is evidence which should have been submitted to the jury. On an appeal from an order setting aside the verdict the additional questions are presented whether the verdict is against the weight of evidence and whether it is excessive or insufficient as the case may be. We have decided that the dismissal of the complaint was error, and the judgment must necessarily be reversed. There
Before closing, we think that notice should be taken of the brief filed by respondent. It contains passages which are indecorous, as it improperly travels outside the record with quotations from the stenographer’s minutes of the former trial and comments thereon. It is an affront to this court to assume that its judgment will be affected by reflections on opposing counsel, based on matters outside the record. A counsel’s duty to his own client should lead him to moderation, fairness to his adversary and respect to the tribunal to which his brief is submitted, for these qualities, and not their opposite, meet the approval of the court.
The judgment of the County Court of Kings county and the order setting aside the verdict should be reversed, the verdict as reduced by the stipulation reinstated and judgment
Present — Jenks, P. J., Thomas, Mills, Putnam and Blackmar, JJ.
Judgment and order of the County Court of Kings county setting aside the verdict reversed; the verdict, as reduced by the stipulation, reinstated, and judgment unanimously directed for plaintiff, with costs and the costs of this appeal.