91 N.Y.S. 491 | N.Y. App. Div. | 1905
This action was brought to recover damages for personal injuries-alleged to have been sustained by the plaintiff on the 4th of November, 1899, while driving on Amsterdam avenue at or near One-Hundred and Seventy-sixth street in the city of New York. .
The allegation Of the complaint upon which the right- (b recover was predicated was to the effect that at the time and place named, -the plaintiff was struck on the head by a piece of rock' thrown by a. blast put off in an excavation which was being made in Amsterdam avenue by the appellants.
I think this judgment should be reversed. The testimony of the plaintiff as to the way in which he was injured is so incredible and contrary to reason that the court cannot permit the verdict, which has nothing else to support it except a slight corroboration by one other witness, to stand. • He testified, in effect, that between four and five o’clock in the afternoon of November 4, 1899, he was driving a horse attached to a road cart on Amsterdam avenue and when he reached a point near the intersection of One Hundred and Seventy-sixth street he was struck on the head by a rock and stunned; that he lost control of the horse, by reason of which one wheel of the cart went into an excavation some two feet deep, and he was thrown out; that he struck on his head and shoulders; and then, to use his own language, “ After I got in the excavation, I still held the lines in my left hand and I grabbed hold of the shaft with my right hand and the horse drew me out, more by the wagon than he did by the reins, and .1. got back onto my cart and started right down the street. * 1 * * After I got out of the excavation, I remember going south on the street, but how far I went I have no recollection. * * * The last thing I remember the horse was on the vacant lot. * * * I did not have power to drive the horse, but I was riding on the cart, trying to gain my feet; and the last I remember I was riding on the shaft, having hold of the seat and riding between the shaft and the crossbar on the cart; riding on the shaft between the shaft and crossbar and having hold of the seat. This cart did not have a dashboard.” He was found in a vacant lot at One Hundred and Seventy-second street and Amster-^ dam avenue, between six and seven o’clock that evening, lying at the foot of a dump some thirty feet in height, among some rocks, in a semi-conscious condition, and his horse and cart' were about 200 feet from him in the same lot, wedged in between two trees. He was taken to a hospital and it was there discovered that he had a
A court, in reviewing evidence upon which a verdict is based, is. bound to exercise its'intelligence, , and in doing so must-recognize the existence of certain facts as controlled by physical laws. It
It may be possible that a person injured as seriously as the plaintiff was could do what he says he did — that is, be thrown from his. cart into, a trench two feet deep, retain the lines of the horse which he was driving in'one hand and grab hold of the cart with the other, be dragged out of the trench and then get up onto the crossbar and there sit until he had been carried several blocks, retaining his consciousness in the meantime,, and then be deposited in someway at the foot of a dump thirty feet in height. Whether it be possible or not, it is so improbable that justice demands the matter-should be submitted to another jury for its determination.
It follows that the judgment and order appealed from must be reversed and a new trial ordered, with costs to the appellants to abide the' event.
Van Brunt, P. J., O’Brien, Ingraham and Hatch, JJ.,. concurred.
Judgment and order reversed, new trial ordered, costs to appellants to abide event.