
    John Sullivan, Resp’t, v. William Brooks et al., App’lts.
    
      (New York City Court, General Term,
    
    
      Filed May 18, 1894.)
    
    Appeal—Evidence.
    Where the verdict is not against the evidence or the weight of evidence, the judgment will be affirmed, in the absence of any exceptions save to the denial of a motion to nonsuit.
    Appeal by defendants from judgment on verdict returned by jury for plaintiff.
    
      Alex. Thain, for app’lts; Edwin G. Davis, for resp’t.
   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 shovelling sand from a pile into a boal 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 shovelling 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.  