
    Gustav Buesing, by Hugo H. Weichelt, his Guardian ad litem, Respondent, v. The Metropolitan Street Railway Company, Appellant.
    • Appeal from a judgment entered upon a verdict and from an order denying a motion for a new trial.
    Henry A. Robinson (John T. Little and Ambrose F. McCabe, of counsel), for appellant.
    Max D. Steuer (Abraham Oberstein, of counsel), for respondent.
   Conlan, J.

The action was brought to recover for injury alleged as a consequence of the defendant’s negligence, and the one question submitted by the defendant on this appeal is that the verdict is grossly against the weight of evidence. The amount demanded was $1,500, and the verdict just half that sum. No advantage accrues to the defendant by reason of his exception to the ruling on the motion for a dismissal of the complaint at the close of the plaintiff’s case. He accepted the alternative offered him, gave evidence in his own behalf and thereby waived the motion. Reade v. Con. Trust Co., 49 App. Div. 400; Hopkins v. Clark, 158 N. Y. 299.

By introducing the evidence, the defendant created a sharp conflict, upon which the whole case was fairly submitted to the jury.

We do not find in the record before us the preponderance of evidence in favor of the defendant which it so boldly asserts in its brief. The jury were at liberty to consider and determine what weight was to be given to all of the evidence and, for reasons which appear to have been sufficient to them, a different value was placed upon the testimony of the defendant from what the counsel, claims for it. H, for reasons satisfactory to them, they discredited any portion of the evidence advanced by the defendant, it was clearly their province to do so, and courts on appeal are very reluctant to disturb the finding of a jury where the evidence has been of a sharp, conflicting character. The theories of the plaintiff and defendant as to how the accident occurred were widely different, and we are not disposed to differ from the jury with the conclusion arrived at.

The other exceptions taken by the defendant do not affect, in our opinion, the single question before us on this appeal, and' the judgment and order appealed from must, therefore, be affirmed.

O’Dwyer, J., concurs.

Judgment and order affirmed.  