43 N.Y.S. 904 | N.Y. App. Div. | 1897
The plaintiff was injured while attempting to board a car on the defendant’s railroad in August, 1894. The question presented upon the trial was whether the car had stopped when the plaintiff attempted to get on board of it, and he was injured by the sudden starting of it before lie was able to get his footing upon the car, or whether he attempted to board the car1 while it was in motion, and was thrown down and hurt. The question was. submitted to the jury by the trial judge, with appropriate instructions, and by them a verdict for the plaintiff was returned. On the coming in of that verdict, upon motion of the defendant, the trial judge set it aside because it was against the weight of evidence, and from his order this appeal is taken.
The only question, of course, brought up for review upon such an appeal is whether upon the whole case it has been made to appear by the appellant here that the trial judge erred in setting aside ■the verdict. In deciding that question the appellate court labors under peculiar disadvantages. It goes without saying that after the evidence has been reduced to narrative form as required by the rules, the testimony thus edited by the appellant’s attorney in the first place, and revised by the respondent’s attorney after him, while it may, in a general way, present the facts as they were sworn to by the witnesses, fails entirely to' reproduce any other of the incidents which accompany the giving of testimony and are so essential to enable one hearing it to conclude whether the witness is speaking the truth or not. Upon paper, and especially when reduced to a narrative form, the testimony of one witness is just as good as the testimony of another, but upon the trial, as all know, this is far different. The testimony there given has not undergone any change or alteration. , The trial judge and the' jury hear it from the mouth of the ■ witness; they see the witness as 'he gives it; they notice the manner in which he answers the question; his intelligence ; the interest which he shows in. the result of the case; the emphasis which he gives to the answer that he makes; his way of testifying ; whether he is a swift witness, or whether he- carefully testifies only to those things which he himself has observed. All these things, which are apparent as the testimony of the witness is given, and constitute what has often been called the atmosphere of
In the examination of this case, laboring as we do under the disadvantages that we have spoken of, we are nevertheless able to see that there was .a grave preponderance of evidence on behalf of the defendant ripon the issue which was presented to the jury. It is quite true that there was a conflict of evidence, but that fact does not necessarily forbid the setting aside of the verdict as against the weight of evidence. ' If there is no evidence upon which the case can be sent to the jury, it is the duty of the court to nonsuit or direct a verdict; so if there is no evidence in the case on one side or the other, the question whether the verdict is against the weight of evidence can never arise. That question can only arise when the evidence is in some sort conflicting, and although there may be conflict enough to warrant the court in sending the case to the jury, yet it does not follow, even in that case, that the court may not set aside the verdict if it is against what the court believes to be the grave preponderance of the proof. (Mulligan v. N. Y. C. & H. R. R. R. Co., 11 N. Y. Supp. 452.) Even if there is a conflict of testimony, the preponderance upon one side or the other may be so very great that the court, although the case should. have been sent to the jury
It is quite true that the court.is not always bound to follow the conclusion reached by the trial judge, and cases are cited to us upon this appeal in which, although the trial judge had set aside the verdict, his order was reversed by this court. With regard to those cases, it may be said that, upon an appeal from an order of this kind, every case must stand upon its own peculiar facts, and, except as far as the opinion lays down some general principle, the decision in one case can never be used as a decision in another case, where the facts and the circumstances are entirely different. This rule is illustrated with especial strength by the case of Layman v. Anderson & Co. (4 App. Div. 124), where this court set aside the order of the trial judge granting a new trial upon the ground that it was against the weight of evidence. In that case, the burden of proof was upon the defendant to establish the defense which alone would free him from his liability to 'the plaintiff. The plaintiff’s case was proved by a writing, the execution of which was admitted and the construction of which was not in. dispute. The defendant could only succeed by establishing practically that, at the time that writing was given, another and cotemporaneous oral agreement had been entered into, which substantially changed the rights of the parties as they appeared in the agreement evidenced by the written paper. The testimony offered by the defendant upon that point was controverted by the plaintiff and was discredited somewhat by the acts of the witnesses who testified on behalf of the plaintiff and by letters written by the plaintiff’s officials. . All these things appeared affirmatively in the printed case upon which the appeal was taken, and, therefore, the court felt at liberty to disregard the judgment of the trial court and reverse its order granting a new trial. In this case, the circumstances are entirely different. The
Van Brunt, P. J., and Barrett, J., concurred; Williams and Patterson, JJ., dissented.
Order affirmed, with costs to respondent to abide the event. '