Zang v. Joline

159 A.D. 885, 143 N.Y.S. 858

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1913
• Status: Published

Opinion

Scott, J.:

This is an action for damages suffered by the infant plaintiff through being struck and knocked down by one of a team of horses drawing a street car operated by defendants. The character of the testimony offered by plaintiff was far from satisfactory, but the weight to be given to it" was essentially a matter for the jury with whose verdict we should not be disposed to interfere, if the evidence, such as it was, ■ from a standpoint most favorable to the plaintiff, disclosed any culpable negligence on the part of defendants’ servant. It is a well-established rule that the mere happening of the accident is not sufficient to establish negligence, and there is no other evidence thereof in the present ease. That the driver of the ear was not proceeding at an unreasonable rate of speed, and that he had his ear well under control is very satisfactorily established by the fact that plaintiff was not much more seriously injured. If a motion had been made for a dismissal of the complaint upon this ground the court might well have granted it. In the absence of such a motion the insufficiency of the evidence to sustain the verdict was brought up upon the motion for a new trial, which, as we think, should have been granted. The judgment and order appealed from should be reversed and a new trial granted, with costs to appellants to abide the event. Ingraham, P. J., Clarke, Dowling and Hotchkiss, JJ., concurred. Judgment and order reversed, new trial ordered, costs to appellants to abide event. Order to be settled on notice.