
    Edward Luhrs, Appellant, v. The Brooklyn Heights Railroad Company, Respondent.
    
      When the trial, judge may nonsuit, or direct a verdict..
    
    It is only where there is a mere scintilla of evidence or an illusory contradiction that it becomes the duty of the trial j udge to nonsuit, or to direct a verdict, as the case may require —not in a case where there is a conflict of evidence.
    Where one or two competent witnesses testify to facts not incredible, which, if believed by the jury, would entitle the party to a verdict, he cannot be deprived of his right to go to the jury because the witnesses who contradict his evidence are more numerous.
    In such a case, the only remedy of the party aggrieved by the verdict is to move to set it aside if it is rendered perversely against the weight of evidence.
    'Motion by the defendant, The Brooklyn Heights Railroad Company, for a reargument of an appeal from a judgment, which was entered in the office of the clerk of the county of Kings on the 23d day of March, 1896, upon the verdict of a jury rendered by direction of the court after a trial at a Trial Term of the Supreme Court held in and for the county of Kings.
    The Appellate Division reversed the judgment and ordered a new trial, the opinion being reported in 11 Appellate Division, 173.
    
      Horace Graves, for the appellant.
    
      Thomas S. Moore, for the respondent.
   Cullen, J.;

We are asked to grant a reargument, on the ground that the' decision hitherto rendered by us is in conflict with what is claimed the controlling authority of Linkhauf v. Lombard (137 N. Y. 426) and Hemmens v. Nelson (138 id. 517). In Linkhauf v. Lombard it is said by Judge Gray : “ The rule should be regarded as settled, under all the authorities, as well by the decisions of the courts of this State as by those of England, that, where there is no evidence upon an issue before the jury, or the weight- of the evidence is so decidedly preponderating in favor of one side that a verdict contrary to it would be set aside, it is the duty of the trial judge to non-suit or to direct the verdict as the case may require.” In the Hemmens case Judge O’Brien said: “The most that can possibly be said is, chat there was a scintilla of evidence on the question of malice, which, under the doctrine of some older cases, was sufficient to carry the question to the jury. But this court is now firmly committed to the more modern and reasonable rule, that, where there is no evidence upon an -issue before the jury, or the weight of evidence is so decidedly preponderating in favor of one side that a verdict contrary to it would he set aside, it is the duty of the trial judge to nonsuit or to direct a verdict as the case may require.”

If the rule stated by these'learned judges was intended to include a case where, on the trial, there was a conflict of evidence, certainly the grounds on which, we based our decision were erroneous. But I am of opinion that no such construction is to he given to the language used in the two cases cited. The opinions must be held as referring and. limited to the cases then before the court. It must be borne in mind that the Court of Appeals has never had jurisdiction on appeals in actions tried before a jury to determine questions of fact. The court so held under the old Code, though there was no statutory provision expressly limiting' its jurisdiction. (Vermilyea v. Palmer, 52 N. Y. 471; Wright v. Hunter, 46 id. 409; Young v. Davis, 30 id. 134.)

By section 1337, Code of Civil Procedure, it is in express terms provided that the Court of Appeals cannot determine a question of fact arising upon conflicting evidence unless where special provision for such determination is made by law. Therefore, if there had been a real or substantial conflict of evidence in the Linkhauf case the court could not have reversed the judgment. A reference to other parts of the opinion shows that the court found that there was no" sufficient evidence to go to the jury. It was held: “ At most, it was only open to a surmise that the defendants were.individually concerned in running this steamship line and that was not enough to justify the trial judge in letting the case go to the jury. To permit a jury to speculate" and surmise upon a question of responsibility is to withdraw from the litigant a safeguard intended for the protection of his rights.” It will thus be seen that the case was one of sufficiency of evidence, not of the weight of evidence.

An examination of the whole opinion delivered in the Hemmens case shows that Judge' O’Beieu could not have intended his language, in reference to the "duty of granting a nonsuit or direction, to be given, the broad construction contended for by the learned counsel for the respondent, for on the preceding page he thus writes of the evidence in the case : “.Still, however improbable it may appear, if there was any evidence of it, the question was doubtless for the jury.”

While the Court of Appeals early repudiated any authority' to determine questions of fact, it, at the same time, declared the doctrine that a verdict or finding of fact without any evidence to support it, or against uncontroverted evidence, presented not a question of fact but a question of law, and could be reviewed' by that court. (Mason v. Lord, 40 N. Y. 476.) It was there said: “ When the alleged error is a finding of fact contrary to the weight of the evidence, it is, within the meaning of the Code providing for appeals, an error of fact, of which this court can take no cognizance. When it is the finding of a fact without any evidence, or the refusal to find a fact proved by uncontroverted evidence, it is a legal error which is available in this court.”

In Pollock v. Pollock (71 N. Y. 137) the same rule was held, and it was subsequently incorporated in section 1337 of the Code of Civil Procedure, but omitted in the amendment of this section in 1895. In the Pollock case Judge Folgeb said: There is no evidence to sustain the finding of that fact by' the Special Term. * * * The circumstances, which are the most urgent, are, upon the authorities cited, insufficient to warrant an inference of a guilty act, and without the aid of inference there is no proof. Insufficient evidence is, in the eye of the law, no evidence. When we say that there is no evidence to go to a jury, we do not mean literally none, but that there is none that ought reasonably to satisfy a jury that the fact sought to be proved is established.” This statement of Judge Folgeb is substantially the same as that of Justice Andrews, that a mere scintilla of evidence or an illusory contradiction is not sufficient to. justify the submission of a case to a jury. I think it must be to only cases where the evidence is of this character- that the decisions in the Linkhauf and Hemmens cases can be considered to apply. Otherwise it must be held that the determination of a matter of fact, where the weight of evidence decidedly preponderates in favor of' one side or the other, presents not merely'a question of fact but a question of law.' I can find no authority for such a proposition. The reports of the Court of Appeals are filled with declarations, especially in negligence cases, that the General Term might have granted a new trial on the facts, but that no such power existed in that court. And this, not on the ground that no motion to direct a verdict had been made or no exception taken, but because the question was one of fact and not of law. In nearly all the cases where it has been held that a scintilla of evidence was not sufficient to uphold a verdict, the proof has been a matter of inference. If one were sued civilly for the conversion of goods which it was alleged he had stolen, the fact that he had been at the place from which the goods were stolen about the time of the larceny, would doubtless be some evidence of the fact that he had taken the goods. But in the absence of other incriminating evidence it would be insufficient to support a verdict against him. So, also, even in the case of direct evidence, the testimony of a witness may be in such contradiction of matters of common knowledge or the laws of nature as to be incredible as a matter of law. Such evidence is suggested by Judge Haight in Matter of Harriot (145 N. Y. 540). So in People v. Evans (40 id. 1) it was held as a matter of law that the uncorroborated testimony of a confessed perjurer was insufficient to justify the conviction of the defendant on a charge of suborning that perjury. In these cases,, and doubtless in others that might he suggested, a verdict would be properly directed. But where one or two comjietent witnesses testify to facts not incredible, which if believed by the jury would entitle the party to a verdict, the party cannot be deprived of his. right to go to the jury because the witnesses who contradict his evidence are more numerous. The only remedy to the party aggrieved is to move to set aside the verdict, if it is rendered perversely against the weight of evidence.

The motion for reargument should be denied, with ten dollars, costs.

All concurred.

Motion for reargument denied, with ten dollars costs.  