Oberlie v. Bushwick Avenue Railroad

6 N.Y. St. Rep. 771

Opinion

Pratt, J.

The principal contention in this case is upon the question whether the verdict ought to be set aside as against the weight of evidence.. Such questions are not governed by any well defined rules, but depend in a great degree upon the peculiar circumstances of each case. They are addressed to the sound discretion of the court, and whether they should be granted or refused, involves the inquiry whether substantial justice has been done, the court having in view the attainment of that end.

The case was brought to recover damages for injuries alleged to have been sustained by the plaintiff by reason of an assault claimed to have been committed upon him by the conductor of the defendant, in violently and negligently throwing him from one of the defendants’ cars.

It is unnecessary to state the testimony which was given upon the trial. The plaintiff testified to enough to warrant a verdict in his favor. He was contradicted in part, by several witnesses, employees of the company, and one or more passengers.

Assuming that the conductor was justified in ejecting him from the car, the jury may have still found that he used more force than was necessary, thereby causing the injuries complained of. The instructions of the court were well calculated to call the attention of the jury clearly to the issues involved, and, so far as the record discloses, the case involved nothing calculated to warp the judgment of the jury. We are not bound to say, under all the circumstances, that the verdict is so manifestly against the weight of evidence as to require that it should be set aside.

Judgment affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., dissenting.