
    Millott v. New York & N. E. R. Co.
    
      (Supreme Court, General Term, Second Department.
    
    May 9, 1892.)
    Appeal—Review—Numerical Preponderance op Witnesses.
    In an action for personal injuries, a verdict for plaintiff will not be disturbed on appeal, as not supported by the evidence, though plaintiff was the only witness in his own behalf, and nine witnesses testified that the accident was caused by plaintiff’s negligence.
    Appeal from circuit court, Orange county.
    Action by Edward Millott against the New York & New England Railroad - Company, for personal injuries. Judgment for plaintiff. Defendant appeals.
    Affirmed.
    Argued before Dykman and Pratt, JJ.
    
      W. O. Anthony, for appellant. John W. Lyon, for respondent.
   Dykman, J.

The plaintiff in this action was employed by the defendant, and his duty was to couple and uncouple cars, for the purpose of making up trains at the yard of the company at East Hartford, in the state of Connecticut, to be run out on the railroad. Early in the morning of the 23d day of February, 1890, while it was yet dark, the plaintiff and others were making up a train in the yard, and he went between two cars to uncouple them. They were box cars belonging to another company, and the drawheads and bumpers were of unequal height, those of the hindermost of the two being about six inches lower than the other. Before the plaintiff started to go between the cars he gave a signal to the engineer to kick off a car, and the train was started back slowly. Then the plaintiff passed in between the cars as they were moving, with his lantern in his left hand, and took hold of the pin of the rear car with his right hand. That was the car to be kicked off on the switch. At that time the train was moving backwards, and the plaintiff was unable to extract the pin, because, according to his testimony, there was a dead link driven into the'drawhead of the forward car, and the coupling link was over the top of that, but did not enter the drawhead as far as it otherwise would. Then the drawhead on the car behind was five or six inches lower than the drawhead on the other. While the cars were moving slowly back, in obedience to the signal, the slack went out of the train, and the cars came suddenly together, and the drawhead of the lower car overrode the link, and caught the elbow of the plaintiff between the two bumpers, and crushed the main artery of his arm, so that the blood would not circulate through it, and amputation was rendered necessary, and his arm was taken off six inches below his shoulder. This action was commenced for the recovery of the damages sustained by the plaintiff; based upon the negligence of the defendant. The cause was tried at the circuit, where a verdict was rendered for the plaintiff for $5,000, and from the judgment entered upon the verdict the defendant has appealed. The defendant moved for a new trial on the minutes of the court, upon the grounds enumerated in section 999 of the Code of Civil Procedure, the motion was denied, and the defendant excepted. There is no appeal'from an order denying the motion for a new trial, and no order denying such motion. There was no exception to the charge Of the trial judge, and the charge is omitted from the case for that reason. The plaintiff was the only witness sworn in his behalf upon the trial, and there were nine witnesses sworn for the defendant, whose testimony tended to contradict that of the plaintiff, and some of them testified that he said the injury was the result of his own fault. Whatever there was in conflict with the testimony of the plaintiff was settled in his favor by the verdict of the jury, and his evidence was sufficient to sustain the verdict. There was one exceplion on the part of the defendant to the exclusion of testimony respecting the compensation of men who pull the coupling pins, but it presents no question worthy of ex-' amination. The questions raised by motion for a nonsuit have all been decided adversely to the contention of the defendant. Gottlieb v. Railroad Co., 100 N. Y. 462, 3 N. E. Rep. 344; Goodrich's Case, 116 N. Y. 398, 22 N. E. Rep. 397; Fuller v. Jewett, 80 N. Y. 46.

The judgment should be affirmed, with costs.  