Opinion
December, 1906.
House, Grossman Vorhaus (Louis J. Vorhaus and Charles Goldzier, of counsel), for appellant.
Henry A. Robinson (Bayard H. Ames, of counsel), for respondent.
The action is for personal injuries. The jury found for the plaintiff in the sum of $550. The defendant moved to set aside said verdict, and the court granted the motion, on the ground that the verdict was based upon insufficient evidence and was against the weight of evidence. From the order setting aside the said verdict, plaintiff appeals. The plaintiff's testimony shows that, on August 24, 1903, he was driving a wagon from Ludlow street up Second avenue to Twelfth street. He was then on the right hand side of Second avenue, going north, and he turned to cross said avenue in order to go west on Twelfth street. As he turned, he saw a car on Second avenue about a block away. His horse and wagon then crossed the uptown track and got on to the south bound track. When the wagon was about halfway across the said track, the car was still about half a block away, but it came on at great speed and struck the rear wheel on the right side near its centre, and threw plaintiff from the wagon and caused considerable injuries. Assuming this testimony to be true, plaintiff made out a case. His testimony is contradicted by defendant's witnesses, but the verdict should not be set aside and a new trial granted where the evidence is conflicting on material points, even though the conclusion reached by the jury may be one which the court itself would not have reached upon the same testimony. Swartout v. Willingham, 6 Misc. 179. The charge of the court was very favorable to the defendant, who took no exception thereto. The jury, however, believed the plaintiff's version of the facts, as they had a right to do, and gave their verdict accordingly.
The order appealed from should be reversed, with ten dollars costs and disbursements and the verdict reinstated.
FITZGERALD and DAVIS, JJ., concur.
Order reversed, with ten dollars costs and disbursements and verdict reinstated.