
    Hobart C. Fash, Resp’t, v. The East River Ferry Company, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 6, 1887.
    
    1. Practice—Verdict—When it will be set aside as against weight OF EVIDENCE
    The court will set aside a verdict on the ground that it is against the weight of evidence only in those cases where it is forced to the conclusion that unless it is done injustice will result, and that the verdict was the outcome of some misconception.
    2. Same.
    In an action against a ferry company for personal injury, winch had resulted in a verdict for the plaintiff, where the plaintiff himself was his only witness as to the way in which the accident occurred, and his testimony contradicts material allegations of his complaint, and is not clear or very satisfactory as to how the accident happened, and his account of what he was doing immediately preceding, and what happened immediately after the accident not being satisfactory, and his confusion of mind at the time not being satisfactorily explained, and being contradicted by several disinterested witnesses as to the circumstances of the accident, and he Having immediately alter the accident admitted it to be his fault. Held, that this is one of the few cases where the court would fail in its duty if it did not exercise the supervision over verdicts given it by law, and that the judgment should be reversed and new trial granted.
    Appeal from a judgment entered upon a verdict and from an order denying a new trial.
    
      N. J. and N. J. Waterberry, Jr., for resp’t: Rice & Bizur, for app’lt.
   Bookstaver, J.

The action was brought to recover damages for personal injuries alleged to have been caused by the negligence of the defendant.

At the close of plaintiff’s case defendant moved to dis miss the complaint on the ground that plaintiff had not-shown that he was free from negligence; and also, because-the testimony showed his negligence contributed to the injury, which was denied, and defendant excepted.

When the testimony was closed on both sides, this motion was renewed on the foregoing grounds; and on the further-ground that there was no proof of any negligence on the part of the defendant, which was denied, and defendant, excepted.

On the coming in of the verdict the defendant also, moved for a new trial, on the judge’s minutes, on the exceptions taken during the trial, and on the grounds that the verdict was against the evidence and the weight of evidence, and that the damages were excessive, which was denied.

These motions bring up for review the entire evidence,, and accordingly we have gone over it with much care.

The only witness for the plaintiff as to the accident, and the way in which it occurred, was the plaintiff himself. His testimony, as to how the accident happened, is not at. all clear; nor is it very satisfactory.

The plaintiff testified that about eight o’clock in the evening of the 11th of March, 1885, he crossed from Thirty-fourth street, New York, to Hunter’s Point on one of the .defendant’s ferryboats. While crossing he sat in the ladies’' cabin. When the boat reached the slip, he left the cabin and crossed over to the gentleman’s side and attempted to-get off the boat. At that time it appeared to be securely fastened, and the chain at the bow was down. Several persons had been standing in the passage-way for carriages. These were some feet ahead of him, and he did not notice-whether they jumped off or stepped over. There were no persons immediately in front of him in the foot passenger way. As he walked, he looked and everything appeared to be safe. The night was dark; the lights on the boat and bridge were insufficient and dim; so that he failed to see there was a space of about fourteen inches between the boat and the bridge. In stepping off his foot went in this space, and his leg just below the knee was injured.

He also testified that after the accident the defendants had put up additional lights, but on cross-examination he could neither tell where the additional fights were placed, nor where the old ones were.

In his complaint he alleged that as he was “walking slowly and prudently in the crowd of passengers going off from the boat, and going therefrom to the wharf or landing place he stepped between the boat and the wharf or landing place, and his right leg was injured and crushed between the boat and wharf or landing place; ” “that the wharf or landing place was so dimly and insufficiently lighted by the defendant that the plaintiff could not see that the boat was not fastened to it.” This statement in his complaint, which was sworn to within three months of the accident, is not only at variance with his testimony as given on the trial, but is contradictory of it.

In his complaint he alleges that he went off the boat in a crowd, leaving it to be inferred that, for that reason, as well as for the insufficient fighting, he did not see the open space; while, on the trial, he testified that he was entirely alone while attempting to get off the boat. In his complaint he claims that his leg was crushed between the boat and bridge, while the testimony on the trial shows that it was not at all crushed, but that what injury he received was caused entirely by the front part of his leg coming in contact with some hard substance—probably the bridge.

His account of what ne was doing in the four hours preceding the accident is not at all satisfactory. He says that on the day of the accident he left his business about four o’clock in the afternoon; that he walked up town with James Bleecker, and parted with him on the corner of Fifty-eighth or Fifty-ninth street and Fourth avenue, about six o’clock in the afternoon; that he went to the 7th Regiment Armory, which is at the corner of Sixty-sixth street and Fourth avenue, where he staid not more than fifteen minutes; that he waited there for his first sergeant, whom he did not see; that he did not see any one there whom he knew; and that from there he went to the Thirty-fourth street ferry. It does not appear that he had any appointment with his sergeant at that time or place; and, without having such an appointment, it is difficult to understand why he should expect to meet him at the hour he was there.

Again, his account of whao happened immediately after, the accident is equally unsatisfactory; although it does not appear that the nature of the injury was sufficient to cause the confusion of mind under which he manifestly labored at that time. He says that he could not recollect anything that happened at the time of the accident, nor whether he lay on the floor or on a bench in the waiting-room, nor could he recollect anything that he said on that night, either in the waiting-room or carriage.

Prom the evidence, it is manifest that at the time of the accident the boat was not fastened to the bridge at all.

The evidence of all the defendant’s witnesses is to the effect that, at the time the boat was coming into the slip, and before it had struck the bridge, the plaintiff was leaning on one of the stanchions directly in front of the chain. John L. H. Hosier, an entirely disinterested witness, says* “The first place at which I am positive I saw Fash, he was leaning against the stanchion, the right stanchion, to which the chain fashioned, on the right hand side of the boat * * * I should say the boat was from twelve to fifteen feet from the bridge when I first noticed him. The bow of the boat was in the slip, and the port side struck the rack after I had seen him.”

The testimony of Mr. Flynn, another disinterested witness, corroborates Mr. Hosier, and is substantially to the same effect, as is also the testimony of William H. West-fall, a deck hand in the employ of the defendants. All the witnesses testify that at the time of the accident the boat was at least fourteen inches from the bridge; that it was backed immediately, and that it did not come any nearer the bridge till after the accident was over. This shows that the boat could not have been fast at the time, or it could not have backed; and also that the leg was not crushed. There is an entire absence of proof that the chain was let down by any employee of the company, while Westfall testifies that the plaintiff himself let down the chain, after it had been put up by him.

As against the plaintiff’s testimony, that the bridge was insufficiently lighted, the defendants proved by five witnesses, three of whom , were entirely disinterested, that there were lamps burning at the time, and that they cast a clear light over the whole bridge, so that they had no difficulty whatever in seeing clearly the place where the boat and bridge met.

Mr. Flynn testified that “ the light was shining on the bridge, and on the end of the boat also, so that anybody could see who had any eyes at all.” At least three witnesses testified that there had been no change whatever in the lights on the bridge or boat since the accident, and it nowhere appears in the case that any similar accident, or accident of any kind, has occurred at that place by reason of the insufficient lighting of the boat or bridge, although thousands of persons must have crossed under similar circumstances.

Westfall testified that while being taken home in a carriage, plaintiff frequently said that it was his own fault in jumping off the boat, and does not deny this explicitly, but says he has no recollection on the subject.

Two of defendant’s witnesses testify as the cause of the confusion of plaintiff’s mind at the time, one of whom was the physician who first attended him. But, as this was disputed by plaintiff and other witnesses on his behalf, we do not lay great stress upon it in arriving at the conclusion to which we have come.

It is always with the greatest reluctance that a court will disturb the verdict of a jury, on the ground that it is against the weight of evidence; and it will do so only in those cases where it is forced to the conclusion that unless it is done injustice will result, and that the verdict was the outcome of some misconception. But when it has arrived at- such a conclusion, it would fail in its duty if it did not exercise the supervision over verdicts given it by law. Clark v. Mechanic’s National Bank, 8 Daly, 481; McCarthy v. Christopher & Tenth Street Ferry, 10 id., 540; Seibert v.Erie Railway Co., 49 Barb., 586; Kinsley v.Brooklyn Crosstown R. R. Co., 1 N. Y., State Rep., 560.

We think this is one of the few cases in which we should exercise that power. By doing so no right is taken away. The effect of setting aside the verdict is simply to subject the case to further consideration by another jury, and this, we think, should be done.

The judgment should be reversed and a new trial ordered, with costs to abide the event.

Daly, J., concurs.

Allen, J.

(Dissenting) The court below fully and clearly submitted to the jury the questions of fact on which they were to pass, and the rules of law applicable to the facts. There was evidence to sustain the verdict, and not, in my opinion, such weight of evidence otherwise as would authorize us to disturb it.

I think the judgment and order should be affirmed, with costs.  