
    Stefano Mieuli, as Administrator, etc., of Michele Mieuli, Deceased, Appellant, v. New York and Queens County Railway Company, Respondent.
    Second Department,
    January 14, 1910.
    Railroad — negligence — when verdict conclusive — credibility of witnesses — íailuré to move for direction of verdict — when verdict, should not be set aside. . .
    Where in an action to recover for the death of plaintiff’s intestate it appears that he was a passenger upon- one of defendant’s cars at midnight; that an hour and a half later he was found in the street severely injured and died the same day, and the evidence is conflicting as to how the injuries were received, a verdict in iavor of the defendant should not be set aside as against the weight of evidence, unless it can- be plainly seen that the preponderance in favor of plaintiff was so-great that the jury could not' have reached the conclusion they did upon any fair interpretation of the evidence.
    Where the right to a verdict depends upon .the' credibility of witnesses and the testimony is neither incredible nor insufficient as a matter of law, the finding of the jury is conclusive.
    Plaintiff by failing to move for the direction of a verdict conceded that the evidence presented a question for the jury.
    Appeal by the plaintiff, Stefano Mieuli, as administrator, etc:, from a judgment of the Supreme Court in favor of the defendant, entered'in the office of the clerk of the county of Queens on the 3d day of March, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day, of March, 1909, denying the plaintiff’s motion for anew trial made upon the minutes in an. action brought to recover damages sustained in consequence of the death of plaintiff’s intestate caused by the alleged negligence of defendant’s servants.
    
      'Henry L. Slobodin, for the appellant.
    
      Bayard H. Ames [John Montgomery and James L. Quackenbush with him on the brief], for the respondent.
   Rich, J.:

The deceased was a passenger upon one of defendant’s cars, operated through Vernon avenue in Long Island City, at midnight of November 17, 1907. At half-past one o’clock he was found at the corner of Worth street and Vernon avenue severely bruised and injured and taken to St. John’s Hospital, where he died on the same day of cerebral hemorrhage. The question litigated was how and in what manner he received such injuries. The plaintiff’s theory is that, as the car upon which his intestate was riding approached Noble street, the latter signaled the conductor to stop, and the car was brought to a full stop; that he started to get off, and while upon the car steps the conductor signaled the motorman to go ahead, the car started suddenly and the decedent was thrown into the street, receiving the in juries resulting in his death. The defendant’s contention was that the decedent was riding upon the rear platform of the car, and, while it was in motion and the conductor inside, the decedent, without giving any signal or informing the conductor of his desire to get off, stepped or jumped from the car and was thus injured.' These different theories or contentions were supported by the evidence introduced by the respective parties, and the verdict rests upon the credibility of the witnesses sworn. The appellant contends that the trial court erred in denying his motion to set the verdict aside and grant him a new trial.

Two principles of law control the question presented by this contention : First, in this class of cases a verdict for the defendant rests upon a different basis than does one for the plaintiff. To warrant a verdict for the latter the jury must find the defendant’s liability established by a preponderance of evidence, but in finding for the defendant they determine that the plaintiff has failed to sustain the burden of establishing his case by a preponderance of proof, and where a verdict is for the defendant the court is not justified in setting it aside as against the weight of evidence unless it can be plainly seen that the preponderance in favor of the plaintiff is so great that the jury could not have reached the conclusion they did upon any fair interpretation of the evidence. (Jarchover v. Dry Dock, E. B. & B. R. R. Co., 54 App. Div. 238, 239.) Second, when the right to a verdict depends upon the credibility to be accorded witnesses and the testimony is not incredible or insufficient as matter of law the question of fact is for the jury and their finding is conclusive. (Fealey v. Bull, 163 N. Y. 397 ; Sawalsky v. Pennsylvania R. R. Co., 39 App. Div. 661; Franklin Coal Co. v. Hicks, 46 id. 441; Dowling v. Brooklyn Heights R. R. Co., 107 id. 312.) The plaintiff failed to move for the direction of a verdict, thus conceding that the evidence presented a question for the jury as to the liability of the defendant. Having determined to take his chances with the jury in a case which had to be disposed of upon evidence from which reasonable men would be as likely to draw one inference as the other, lie should be content with the verdict thus rendered. (Grogan v. Brooklyn Heights R. R. Co., 107 App. Div. 254.) The case was presented to the jury by the' learned trial justice in a charge free from error, and the point that hearsay evidence was improperly received is not presented by exception. It is not apparent that grave injustice has been done the plaintiff, and we will not exercise our power to review these rulings. (Smith v. Nassau Electric R. R. Co., 57 App. Div. 152; Hull v. Cronk, 55 id. 83.)

The judgment and order must be affirmed, with costs.

Present — Hieschberg-, ' P. J., Woodward, Burr, Thomas and Rich, JJ. ■

Judgment and order unanimously affirmed, with costs.  