75 N.Y.S. 952 | N.Y. App. Div. | 1902
This action is brought to recover damages for personal injuries sustained by the plaintiff while attempting to alight from one of the defendant’s cars upon which she was a passenger. The plaintiff gave evidence tending to show that she was free from negligence and was injured through the negligence of the defendant. The material facts were controverted by the testimony introduced on the part of the • defendant. The record indicates that the learned trial justice considered that the evidence preponderated in favor of the defendant, and, accordingly, at the close of the evidence and .upon defendant’s motion, a verdict was directed in its favor. The authority of the court to direct a verdict in accordance with the preponderance of the evidence where the court would set the verdiet asido as against the weight of the evidence if rendered in favor of the other party, was not at that time definitely settled by the decisions. Subsequently, however, the Court of Appeals in McDonald v. Metropolitan St. R. Co. (167 N. Y. 69) decided that in such circumstances the case must be submitted to the jury in the first instance. It follows that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event. Van Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred.