
    AZZARA v. NASSAU ELECTRIC R. CO.
    (Supreme Court, Appellate Division, Second Department.
    October 8, 1909.)
    1. Appeal and Error (§ 979)—Discretion of Lower Court—New Trial.
    The decision of a trial justice setting aside the verdict for insufficiency of the evidence will not be disturbed, unless it clearly appears that he improperly exercised his discretion.
    [Ed. Note.—For other eases, see Appeal and Error, Cent. Dig. § 3871; Dec. Dig. § 979.]
    
      2. New Trial (§ 70)—Injuries to Person on Track—Insufficiency oe Evidence. . ,
    In an action for the death of a child struck by a street ear, held to authorize the trial justice in his discretion to set aside a verdict for plaintiff and grant a new trial for insufficiency of the evidence.
    [Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 142, 143; Dec. Dig. § 70.]
    Hirschberg, P. J., dissenting.
    Appeal from Trial Term, Kings County.
    Action by Salvatore Azzara, as administrator of Andrew Azzara, deceased, against the Nassau Electric Railroad Company. From an order setting aside a verdict for plaintiff and granting a new trial, he appeals.
    Affirmed.
    Argued before HIRSCHBERG, P. J., and GAYNOR, BURR, RICH, and MILDER, JJ.
    M. E. Malevinsky (Frank F. Davis, on the brief), for appellant.
    D. A. Marsh, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   BURR, J.

This action is brought to recover for the pecuniary injury resulting to the plaintiff as the father and next of kin of a child four years of age. The jury found a verdict for the plaintiff, and assessed the damages at $2,675. On motion the verdict was set aside and a new trial ordered by the learned justice before whom the case was tried. An appeal is taken from the order entered in accordance with his decision.

The vital question in the case is whether the child was on the track between the rails for a period of time sufficiently long to enable the motorman, had he been exercising reasonable care and vigilance, to have seen him and brought his car to a stop before running over him, or whether, after the front of the car had passed the child in safety, he ran into the running board near the front wheels, and was thrown down and drawn under the car. The justice presiding at Trial Term has a peculiar advantage over the court sitting as an appellate tribunal in determining whether a verdict is or is not contrary to the weight of evidence. He hears the testimony of the witnesses as it falls from their lips in response to questions addressed to them. He can see their manner upon the witness stand. He can hear the very inflections with which answers to questions are given. He can note whether the testimony is given carefully and with apparent sincerity, or hesitatingly and with an apparent desire to evade and equivocate, when interrogated respecting matters which might seem to the witness to be unfavorable to the party who had called him. The appellate justices are deprived of many of these opportunities. The evidence reaches their minds only through the medium of the eye, after it has been reduced to narrative form and is presented on a printed page. They are not assisted by the ear at all. Almost always there is an atmosphere which surrounds a trial before a jury which enables the trained mind instinctively, and perhaps without being able to give a logical reason therefor, based upon an analysis of the evidence, to determine whether witnesses are speaking accurately and truly or mistakenly and falsely. The trial justice breathes this atmosphere. The appellate justices are to a great extent deprived of it. For these reasons the decision of a trial .justice setting aside a verdict should not be disturbed, unless it is perfectly clear that the discretion confided to him has been improperly exercised.

Five witnesses were called by the plaintiff, who saw the accident or some part thereof. One of them only saw the child after he was under the car. Another could not tell whether he, was struck by the front of the car or ran into the side of it. The testimony of the others was somewhat contradictory, and pne of them admitted having made statements shortly after the accident to the effect that he did not see it at all. Eleven eyewitnesses of the accident, or some part thereof, were called by the defendant. Outside of the conductor and motorman, most of them were passengers upon the car. They substantially agree that the child was running* from the curb toward the •car, and came into collision with the running board near the front wheel, was knocked down, and drawn under the car.

Counsel for the appellant argues that the position of the body after the accident, when it was lying under the rear truck, between the motor and pony wheels and about in the center of the track, makes it physically impossible that he should have been struck by the side of the car. We do not think this is absolutely certain. Considering his age and size, it is by no means impossible that, after being struck and knocked down, his clothing,' or some part of his person, may have been caught by the mechanism around the front wheels, and in that manner his body drawn underneath the car. The verdict was a large one, considering the age of the child. This may have influenced the trial justice to believe that the jury had not given the case the calm, impartial, unsympathetic consideration which was demanded.

The order appealed from should be affirmed, with costs. All concur, except HIRSCHBERG, P. J., who dissents.  