98 N.Y.S. 268 | N.Y. App. Div. | 1906
On the trial of this action, which was brought to recover damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant, the former obtained a verdict and after its rendition and before the entry of judgment, the defendant moved fo set it aside. It appears from the clerk’s minutes of the trial that that motion was denied. Thereupon judgment was entered on the verdict. Subsequently the justice presiding at the trial reconsidered such denial and granted the motion; the verdict was set aside, a new trial was granted-and the judgment entered was vacated. From the order so directing the plaintiff appeals. The reasons of the learned trial judge for setting aside the verdict are contained in an opinion printed in the record.
Reluctant as we are to interfere with, the disposition nqade by. a trial judge of such a motion as this, yet we are forced to the conclusion in the present case that the instructions given by the justice to the jury were full, adequate and correct and that the verdict was not against the weight of evidence in tile view which the jury were authorized to and.evidently did take of that evidence. A plaintiff-in an action to recover damages for personal injuries has an interest in a verdict obtained by him in the nature of .a property right (Wood v. Phillips, 11 Abb. Pr. [N. S.] 2; Carr v. Rischer, 119 N. Y. 125), and he should not be deprived of' that right, unless the verdict is setvaside for good and substantial reasons which compel that course to be pursued.
The material facts connected with the- accident from which the plaintiff suffered .personal injuries are,, in brief, the following : He was á passenger on a car belonging to and operated by the defendant corporation. In that car -was.an apparatus Used for registering fares collected from passengers. - It was -attached to the car by ■ ■ brackets and at the top was held in position by a prong- about two ■ inches long. That prong was attached -to the ‘car* and if the appara-' ttis, which is called in the record both “ register ” and “ clock/’ is taken away the prong remains id'the car as"a permanent, attachment While the plaintiff was in the car this apparatus fell without apparent cause and struck the plaintiff óh his foot, causing him some injury. The learned trial judge ruled--that the case'was controlled by the maxim' res ipsa loquitur, and that the. obligation rested Upon the defendant to explain the accident. Without discussing that subject at length it is sufficient to say that we are not disposed to differ with the view the trial, judge-entertained concerning it. The defendant undertook to explain the causé of. the accident, and it was attributed to a defect in the casting of the prong, in which it was claimed (and there was some evidence to substantiate, that theory) that -there existed an air bubble or blister. Proof was offered that the car and everything connected with it Was regularly and frequently inspected by servants of the defendant who were charged with the-perform^ anee of ‘ that duty, and the attempt was made also to prove that the defect in the prong could not have been detected by inspection, ■ In
As stated before, the learned trial judge also considered that he did not charge the jury with sufficient distinctness — referring to his remarks as to the credibility of the defendant’s witnesses, and he was of the opinion that he should have given them more definite instructions upon that subject, and that he should have told the jury in so many words that they should find a verdict for the defendant if they believed its witnesses. He did charge the jury — not in those words, but very clearly and unmistakably to the same effect. He told them that witnesses had. been called by the defendant for the purpose of explaining the cause of the accident ; that those witnesses testified that it was caused by the breaking of the cast iron prong which projected from the frame of the car and to which the register was attached, and that the breaking was caused “ through a flaw or * * * an air blister in this' cast iron projection; ” that that was something that could not have been seen until after the iron had been broken ; that it was for the .jury to pass upon the credibility of those witnesses who are in the employ of the . defendant and to say whether or not their -testimony shall be accepted by them in its entirety. He said: “ All of the defendants
We do not see lioW the jury could have been better instructed upon this subject. The meaning of the court is clearly expressed, in plain language. , •
■It is; intimated (in the opinion we have been considering) that there may have been an error in the charge respecting the plaintiff’s right to recover for loss of profits in his business, but the learned judge did hot pass upon that question. It is sufficient to say now that evidence was given of the nature of the plaintiff’s business and of what bis expenses were, and in that evidence the only expense or outlay of the plaintiff in conducting his business is stated. It is also intimated (in the opinion) that the conduct of such business involved the question of the rental of premises and use of capital and the employment Of men. The expenses for the employment of men were testified to, the outlay of capital was also testified to and it appeared that there were no other expenses to which the plaintiff was put in “ running ” the oyster stand at which he conducted his business. Outside of those expenditures, everything else he received was profit. The charge to the jury concerning the loss of profits was very guarded and under.the proof was not erroneous.
The order appealed from should be reversed and the verdict, reinstated, with costs of this appeal.
O’Brien, P. J., McLaughlin, Laughlin and Houghton, JJ. concurred.
Order reversed and verdict reinstated, with costs. Settle order on notice.