
    Catherine McCann, as Administratrix, etc., of Simon McCann, Deceased, Appellant, v. New York and Queens County Railway Company, Respondent.
    A motion to set aside a fourth verdict for the plaintiff as against the weight of evidence denied.
    
    An action to recover damages resulting from the death of the plaintiff's intestate, through the alleged negligence of the defendant, was tried four times and on each trial the plaintiff obtained a verdict. The first verdict for §6,000 was set aside by the Appellate Division as against the weight of evidence. Upon an appeal from the judgment rendered on the second verdict, also for §6,000, the Appellate Division held that the evidence required the case to be submitted to , the jury, but reversed the judgment on an exception tc the charge. The third verdict, which was for §12,000, was set aside as against the weight of evidence and because the damages awarded were excessive. The evidence given upon the fourth trial was not materially different from that introduced upon the former trials and the trial court set aside the verdict for §5,500 upon the sole ground that it was against the weight of evidence.
    
      Meld, that the order setting aside the verdict should be reversed and the verdict reinstated;
    That, as the issues of fact in the case must be ultimately decided by a jury, and as four juries selected at different times had determined such issues in the same way, the trial court should not have set aside the verdict as against the weight of evidence, especially as it appeared that, on both occasions when the Appellate Division set aside the previous verdicts as against the weight of evidence, it had done so by a divided court.
    Ingraham and McLaughlin, JJ., dissented.
    Appeal by the plaintiff, Catherine McCann, as administratrix, etc., of Simon McCann, deceased, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 11th day of February, 1902, setting aside the verdict of a jury in favor of the plaintiff for $5,500, and granting a new trial of the action.
    
      M. P. O' Connor, for the appellant.
    
      William P. Stewart, for the respondent.
   Laughlin, J.:

This is a statutory action to recover damages for the death of ¡Simon McCann. The case has been tried four times, each trial resulting in a verdict for the plaintiff. The first verdict was for $6,000. On appeal it was set aside by this court as against the weight of evidence (28 App. Div. 625). On the second trial the. plaintiff also recovered a verdict for $6,000, and on appeal it was. held tha't the evidence required the submission of the case to-the jury, but the judgment was reversed on an exception to the charge (56 App. Div. 419). The third verdict was for $12,000 and this was set aside as against the weight of evidence, and because the damages awarded were deemed excessive (65 App. Div. 611). The last verdict is for $5,500. The sole ground upon which the respondent attempts to sustain the order is that the verdict is against the weight of the evidence upon the question of defendant’s negligence and decedent’s freedom from contributory negligence. It is stated under this point by the respondent that the decedent was guilty of contributory negligence, but it is not claimed that the evidence is materially different from that introduced upon the former trial, and the previous decisions of this court establish the plaintiff’s right to. have the case upon such evidence submitted to the jury. Even if these decisions were not res adjudicata upon those questions there could be no doubt from an examination of the record that there was a conflict of evidence which carried the case to the jury and that a nonsuit or dismissal of the complaint would have been error. We have then a case where a jury trial is guaranteed by the Constitution (Art. 1, § 2) and where the inference to be drawn from the evidence upon material propositions are conflicting, which makes it the impei'ative duty of the court to submit the questions of fact to a jury for their determination. (Williams v. D., L. & W. R. R. Co., 155-N. Y. 158 ; McDonald v. Met. St. Ry. Co., 167 id. 66.)

There is nothing extraordinary in this case. This court has merely differed from the jurors on the inferences that should be legitimately drawn from the evidence. It is significant that in attempting to-pass upon these questions of fact, this court has not been unanimous. The first time the verdict was set aside upon that ground two-justices dissented, and the last time one dissented. It is plain that in the circumstances the trial court would have no right to non-suit -the plaintiff, and that the court cannot reverse and dismiss the. complaint. These issues of fact must be ultimately decided by the jury. The single question presented, therefore, is whether this court can or should accomplish indirectly by setting aside the verdict what it could not accomplish directly, viz., prevent a recovery by the plaintiff. The statutory law on the subject is meagre. Section 999 of the Code of Civil Procedure provides that the justice presiding at a trial may entertain a motion made upon his minutes to set aside the verdict upon the ground, among others, that it is “ contrary to the evidence.” There is, it is true, no express limitation as to the extent to which the court may exercise this power, but this authority is to be construed in the light of the settled practice of the courts. Where the right to a jury trial exists, it is intended that the verdict of the jury shall be conclusive upon the facts in the absence of legal error or bias, passior., prejudice or corruption. Yerdicts are set aside as against the weight of evidence, and new trials are granted on the theory that the jury have been influenced by bias, passion, prejudice or corruption. Juries are sometimes thus influenced; but a case would have to present exceptional and extraordinary features to justify the inference that three different juries selected at different times, without any knowledge of the previous history of the case, would be thus influenced.

The early decisions were to the effect that where two successive verdicts are the same, the second would not ordinarily be disturbed on the ground that it was against the weight of evidence. (Wilkie v. Roosevelt, 3 Johns. Cas. 206; Gilligan v. N. Y. & H. R. R. Co., 1 E. D. Smith, 453 ; Seely v. Shaffer, 32 N. Y. St. Repr. 480; Nichols v. Tuttle, 35 id. 851; Yeandle v. Yeandle, 40 id. 791; Haring v. N. Y. & Erie R. R. Co., 13 Barb. 16; Fowler v. Ætna Fire Ins. Co., 7 Wend. 275; Betsinger v. Chapman, 24 Hun, 16 ; Barrett v. N. Y. C. & II. R. R. R. Co., 45 App. Div. 225, 229 ; King v. Masonic Life Assn., 87 Hun, 591.) Sometimes, as in this case, a second verdict has been set aside as against the weight of evidence, but unless the circumstances are extraordinary, and the verdict is clearly outrageous, a court is not justified in setting aside a third verdict upon the same facts. (Dorwin v. Westbrook, 11 App. Div. 394; affd., 158 N. Y. 742; Nutting v. Kings Co. El. R. Co., 91 Hun, 251; 21 App. Div. 73, 75 ; Scheftel v. Hatch, 53 N. Y. St. Repr. 656, 658; Kummer v. Christopher St. R. R. Co., 14 Misc. Rep. 507; Clark v. Jenkins, 162 Mass. 397.)

While the trial court and the Appellate Division should not hesitate to set aside a verdict as against the weight of evidence where the ends of justice appear to require a new trial, jet when it comes to setting aside on this ground alone three verdicts rendered in an ordinary action possessing no extraordinary features, the court should hesitate lest it usurp the functions of the jury.

A sufficient number of trials has now been granted to remove any suspicion of the existence of bias, passion, prejudice or corruption, and it becomes a mere matter of judgment on questions of fact. The administration of jurisprudence where trial by jury is preserved goes upon the theory that the judgment of twelve laymen upon a question of fact is safer than that of a smaller body of judges who are more removed from the people. An unwarranted exercise of this power to set aside verdicts as against the weight of the evidence would sooner or later bring the judiciary into disrepute. We think any further interference with the verdict of the jury in this case would be unauthorized and unjustified. As appears by a recital in the order the learned trial justice did not exercise his individual discretion, but he set the verdict aside upon the theory that it was his duty to do so under the last decision of this court. In this he was in error. This court merely determined that the case should be again submitted to the jury. The damages awarded are not excessive.

It follows from these views that the order should be reversed and the verdict reinstated, with costs of the appeal to the appellant.

Patterson and O’Brien, JJ., concurred; Ingraham and McLaughlin, JJ., dissented.

McLaughlin, J. (dissenting):

The evidence adduced upon the last trial is substantially the same as that adduced upon the preceding one. There is no material change whatever, unless it be that the evidence on the part of the defendant has been strengthened. On the last appeal, this court, in reversing the judgment and ordering a new trial, held that the verdict was against the evidence, not only as to the defendant’s negligence, but also as to the contributory negligence of the deceased. (65 App. Div. 611.) That is the law of the case, binding upon the trial court, and I think upon this court, notwithstanding the personnel of it is changed.

But it is said the order should be reversed and the verdict reinstated because a jury has four times found in favor of the plaintiff. A wrong committed, no matter how often, never makes a right. This verdict is wrong; it is the result of misconception, prejudice or partiality and ought not to be approved by the court. Upon substantially the same state of facts we have several times declared that the plaintiff ought not to recover,, and yet we are about to permit a recovery, because the jury forsooth have, for the fourth time, committed the same wrong. The law imposes a duty upon this court to review verdicts, and whenever it can be seen that injustice has been done, by reason of the jury not properly considering the evidence, or that its action has been influenced either by prejudice or partiality, then the court ought, in the discharge of its duty, to fearlessly exercise the power given to it by the statute (Code Civ. Proc. § 1317) and right the wrong by setting the verdict aside and ordering a new trial, and this as many times as may be necessary to accomplish the proper result. Justice never tires, and an act ought not to be approved in its name which wrongfully takes property from one person and gives it to another.

I think the order appealed from should be affirmed.

Ingraham, J., concurred.

Order reversed and verdict reinstated, with costs of appeal to appellant.  