Salcinger v. Interurban Street Railway Co.

Appellate Terms of the Supreme Court of New York

Salcinger v. Interurban Street Railway Co.

52 Misc. 179, 101 N.Y.S. 804

CourtAppellate Terms of the Supreme Court of New York

DecidedDecember 15, 1906

StatusPublished

Cited by4 cases

This text of 52 Misc. 179 (Salcinger v. Interurban Street Railway Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Salcinger v. Interurban Street Railway Co., 52 Misc. 179, 101 N.Y.S. 804 (N.Y. Ct. App. 1906).

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Opinion

Gildersleeve, J.

The action is for personal injuries. The jury found for the plaintiff in the sum of $550. The [180]*180defendant 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 on@ which the court itself would not have reached upon the same testimony. Swartout v. Willingham, 6 Misc. Rep. 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.

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Gildersleeve, J.

The action is for personal injuries. The jury found for the plaintiff in the sum of $550. The [180]*180defendant 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 on@ which the court itself would not have reached upon the same testimony. Swartout v. Willingham, 6 Misc. Rep. 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.

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Bluebook (online)

52 Misc. 179, 101 N.Y.S. 804, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salcinger-v-interurban-street-railway-co-nyappterm-1906.

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