
    John Sullivan, Respondent, v. William Brooks et al., Appellants.
    (City Court of New York— General Term,
    May, 1894.)
    In an action for personal injuries alleged to have been caused by negligence the plaintiff testified that while he was shoveling sand from a pile into a coal hole in the sidewalk, with his back to the street, a driver of the defendants backed his team, without warning, so that the wagon struck him and ran Over his leg, and two witnesses testified that defendant Brooks said that the driver had come near running over him and he was going to - discharge him. This was denied by said defendant. Held, that a verdict in favor of the plaintiff was not against the evidence or the weight of evidence.
    Appeal by defendants from a judgment on verdict returned by jury for plaintiff.
    
      Edwin G. Davis, for respondent.
    
      Alex. TKai/n, for appellants.
   Van Wyck, J.

The action is for damages for personal injuries received by reason of the negligence of defendants’ servant in so driving a team of horses as to cause the wagon to run upon plaintiff and crush his leg. The verdict was for plaintiff for $250, and is not excessive. The defendants duly excepted to the denial of their motion to nonsuit, on the grounds that the proof did not show that plaintiff was free from negligence, or that defendants had been guilty of carelessness, and did show that plaintiff’s negligence had contributed to the accident. The plaintiff, a hod carrier, says that he was shoveling sand from a pile into a coal hole in the sidewalk when the driver turned his wagon and team, and before plaintiff knew anything he was run down and did not see the team as it backed on him just before it struck his leg, because he was shoveling the sand on the sidewalk with his back toward the roadway, and that the driver never hollered or said a word or gave any warning, and before plaintiff knew where he was the wagon was on his leg, and that the driver could have come up another way, and no other driver came up like him, and he could have come up as any -other driver did; and two other witnesses testify that just after the accident the defendant Brooks said: “ I am sorry myself; the driver yesterday came pretty near running over me, and I am going to discharge him. That driver went very near killing me, but he will never drive for me again.” However, this defendant denied making such statements. The verdict is not against the evidence or the weight of evidence, and the judgment and order appealed from are affirmed, with costs.

Ehrlich, Ch. J., concurs.

Judgment and order affirmed, with costs.  