
    Patrick Mullane, Respondent, v. The Houston, West Sreet & Pavonia Ferry Railroad Co., Appellant.
    (City Court of New York, General Term,
    May, 1897.)
    1. Evidence — Weight of.
    The mere fact that one party produces but one witness to his opponent’s array does not constitute a preponderance of evidence against him; it is the quality and not the quantity of evidence that creates a preponderance.
    
      8. Negligence — Master and servant.
    Plaintiff, who was employed toy the defendant, was directed to go down in a. hole to examine and do some work on a grease box on a sheath wheel in which the cable ran, and did so relying on the promise of the foreman that he would notify the engineer not to start the machinery while he was down. Shortly after he began the work the machinery was started and he was injured. Held, that he had a right to rely on the foreman’s promise, and that the defendant was liable for the injury.
    FloettI v. Third Ave. R. R. Co., 10 App. Div. 309, followed.
    Appeal from judgment in favor of the plaintiff,, entered upon a verdict.
    Henry A. Robinson, for appellant.
    M. P. O’Connor, for respondent.
   Conlan, J.

This action is brought by the plaintiff, a former employee of the defendant company, to recover for personal injuries alleged to have been sustained by him in consequence of the defendant’s negligence.

The plaintiff was sent down into a hole Underneath the surface on the morning of November 25, 1893, by the defendant’s superintendent at a time when the operation of the machinery ceased, to do certain work in and about a grease box on a sheath wheel in which ran the cable used to move the defendant’s cars, and while occupying a position under this sheath wheel the machinery was started, and as. a result the plaintiff received the injuries for which the recovery is sought.

It was the custom of the defendant to stop this machinery every day from about half-past two o’clock in the morning for a period of about two or three hours, and it was while the operation of this machinery was suspended that the plaintiff was ordered into the hole in question at about the hour of three in the morning.

Plaintiff testified that he made objections to going below when ordered to so do by his superior on the ground of impending danger, but that the superior informed him that he would notify the engineer not to start the machinery while he was in the hole, and on this the plaintiff seems to have relied.

A coworkman of the plaintiff, called as a witness for the defendant, testified in his direct as follows: I took my instructions from Mr. Greenwald. He employed me there. He gave instructions to me and Mr; Mullane, the plaintiff. He told us after the cable stopped to go down and examine the bar.”

The proceedings upon the trial of this action as presented by the case on appeal are so free from objections and exceptions by the defendant, that we are in a measure left to conjecture as to the defendant’s reasons for a reversal of the judgment. Indeed, the only exceptions are at the close of the entire case; the one to a refusal to dismiss the. complaint at the close of all the testimony, and the other to a refusal to set aside the verdict.

Much is said in the appellant’s brief concerning the preponderance of evidence in favor of a party whose only evidence is his own sworn statement, when such statement is contradicted by more than one or two witnesses who testify in favor of his opponent.

The rule was never carried to that extent, and if it were, it would frequently result in defeating the ends of justice.

We think the' trial justice correctly stated the rule when he said “ preponderance of evidence refers rather to the quality than to the quantity of evidence.”

The jury may have the right and it is their Special province to inquire into and say by their verdict, what weight shall be given to the evidence before them. The fact that one party produces but one witness to his opponent’s array is wholly immaterial and we are not here to inquire by what methods juries reach a conclusion upon a conflict of evidence. That there is a conflict makes it proper that the case be allowed to go to the jury.

The defendant conceded that the plaintiff made out his case by failing to move for a dismissal at the close of the plaintiff’s casé.

He did not even ask to reserve the right to make this motion until the close of all the testimony and then appears to have relied for a decision in his favor upon the assumed facts that, he offered, perhaps, more evidence, or had arrayed a greater number of witnesses than his opponent. .

It is argued that the trial justice erred- in allowing the jury to disbelieve Mr. Greenwald. Why were they not to be permitted to believe .the plaintiff’s- story as. well as it is -urged to accept that of Greenwald? f

The court had charged the jury in an eminently fair and impartial manner, and the defendant, appears to have been satisfied with the charge, for there was a total absence of exceptions thereto.

We think this case is within the control of the principle laid down in Floettl v. Third Ave. R. R., 10 App. Div. 309.

The facts in that case appear to fit so well to those in the case at bar that we do not think a citation of any other authority necessary to sustain the judgment appealed from, and without discussing any of the other matters referred to in the argument for the appellant, we are of the opinion that the judgment with recent statement should be affirmed, with costs.

Schuchman, J., concurs.

Judgment affirmed, with costs.  