
    JANE MOONEY, Plaintiff and Respondent, v. THE HUDSON RIVER RAILROAD COMPANY, impleaded, Defendants and Appellants.
    A railroad company may be held liable for negligence in propelling its cars, while persons are upon its track, precisely to the same extent as the owner of an ordinary carriage would, under like circumstances; indeed, greater care might be required from the former, as their cars are stopped with difficulty and cannot be turned out of their course.
    The right of a railroad company to run its cars in a' particular place is not exclusive; all other cars, carriages, and persons who are authorized by law to use the same place, have the same rights as the company, but the same degree of care and caution must be exercised by each. Sixteen hundred dollars will not be regarded as excessive damages for injuries sustained by a laboring woman, so badly bruised as to be unable to work for a long time.
    Before Barbour, C.J., Jones and Fithian, JJ.
    
      [Decided June 11, 1869.]
    This action was tried before Chief-Justice Robertson and a jury.
    This action was brought to recover damages sustained by a collision between a car of the Central Park, North and East River Railroad Company, and a locomotive of the Hudson River Railroad Company. On the 30th of July, 1866, the plaintiff entered one of the cars of the Central Park, North and East River Railroad Company, intending to ride as far as Eorty-first street and Tenth avenue. The complaint alleged that on the Tenth avenue, at or near Thirtieth street, through the negligence and carelessness of both defendants, the cars of both defendants came into collision, and that she was violently thrown out of the car which she was in and received severe injuries, for which she brought this action. The answer of the Central Park, North and East River Railroad Company admitted the collision, but denied that the plaintiff sustained any injury, or that the injury was occasioned by their negligence. The answer of the Hudson River Railroad Company admitted the collision, but charged that it was caused by the negligence of the street car, and that the plaintiff contributed to her injuries by her own negligence.
    The evidence is fully stated in the opinions.
    The jury found a verdict against both defendants.
    A motion was made by the defendants The Hudson River Railroad Company to set, aside the verdict as to them, on the ground that the verdict was against the weight of evidence, and the damages excessive, which motion was denied. The defendants the Hudson River Railroad Company appealed to General Term from this order and also from the judgment.
    
      Mr. Frank Loomis for appellant.
    The damages are excessive. The amount given by the jury is so grossly disproportionate to the extent and effect of plaintiff’s injuries as to compel the conclusion that the jury were influenced by partiality, prejudice, or passion. The verdict should be reduced or a new trial granted (Clapp v. Hudson R. R.R. Co., 19 Barb., 461; Blum v. Higgins, 8 Abbott, 104; Murray v. Hudson R. R.R. Co., 47 Barb., 196).
    The motions of the appellants for nonsuit was erroneously denied (24 N. Y., 433; 30 N. Y., 235; 22 How., 431; 29 Barb., 226).
    The motion of the appellants for a separate trial as between plaintiff and each of the defendants, as provided hy sec. 258 of the Code, should have been granted. The defences of the defendants were entirely distinct; their respective answers imputed negligence to each other, and a joint trial was calculated to and did prejudice the rights of the appellants and placed them at a disadvantage. The complaint alleged negligence on the 'part of the defendants, The Central Park, Horth and East River Railroad Company, having charge of the car upon which plaintiff was a passenger. The evidence showed such negligence. The jury by their verdict found the defendants The Central Park, North and East River Railroad Company guilty of such negligence. The negligence of those having charge of the street car must be regarded as the negligence of the plaintiff, and the judgment, as against appellants, cannot be maintained (Brown v. N. Y. C. R.R. Co., 32 N. Y., p. 597; 5 Robertson, 548).
    The verdict is contrary to the weight of evidence and should be set aside (49 Barb., 583; 25 N. Y., 363).
    
      Mr. Alexander H. Reavey for respondent.
    The action was well brought against both corporations. The car and locomotive having collided and caused the injury, was of itself prima fade evidence of negligence on the part of both. There was evidence tending to show that the collision was the fault of the appellants. The respondent entered the car as a passenger and paid the usual fare, and, while being carried to her place of destination, received the injuries, without negligence on her part (Colgrave v. N. Y. & New Haven and New York & Harlem R.R. Co’s, 2 N. Y. Rep., 492).
    There was evidence establishing the fact that the collision was occasioned by the cojicurrent negligence of both defendants, and the learned judge could not do otherwise than submit the case to the jury. The respondent was free from all contributing negligence ; she neither had the management of the car she was in, nor any control of the appellants’ locomotive (Wilds v. Hudson R. R.R., 33 Barb. Rep., 503; Brown v. N. Y. Central R.R., 32 N. Y. Rep., 597; Beisiegel v. N. Y. Central R.R., 34 N. Y. Rep., 622 ; Ernst v. Hudson R. R.R., 35 N. Y. Rep., 9).
    Even if it be conceded that there is a conflict of evidence, and that the evidence strongly preponderates in the appellants’ favor, the Court will not, and should not, for that reason, disturb the verdict of the jury; nor because the Court would have come to a different conclusion on the force or weight of the testimony (27 Barb. Rep., 528; 29 Barb. Rep., 491-504; 33 Barb. Rep., 127; 44 Barb. Rep., 554).
    The damages are not excessive, and the Court would not be justified in reducing the amount, or in granting a new trial upon that ground, unless it clearly appears from the evidence that the jury were Massed or prejudiced, or committed gross error in their consideration of the evidence, or, in other words, that they acted from passion, partiality, or corruption.
    
   By the Court:

Barbour, C.J.

This was an action for a personal injury alleged to have been caused by the negligence of the defendants.

Upon the trial it appeared that the plaintiff, while a passenger in a street railroad car, and standing upon the platform thereof, was struck by a car of the defendants which was being propelled by steam upon a track'crossing that of the street railroad, and thereby was wounded and injured.

Without looking into the facts to see whether there was any actual negligence beyond what may be inferred from this statement, I am of the opinion that a verdict in favor of the plaintiff was justified by the evidence.

Indeed, I see no reason why a railroad company may not, subject, of course, to the particular circumstances appearing in each case, be held liable for negligence in propelling its cars at all, while people are standing upon its track, precisely to the same extent as the owner of an ordinary carnage would be under like circumstances. Indeed, greater care and caution might well be required from the former; as their cars are stopped with difficulty, and cannot be turned out of their course at all.

A railroad company, it is true, is expressly authorized by its charter to run its cars in a particular place. But that right is not exclusive. All other cars, carriages, and persons who are authorized by law to rise the same place, as was the case at the point in question, have precisely the same rights that such company has. As a matter of course, however, let what may be the degree of negligence on the part of the company in such a case, a corresponding degree of care and caution must be exercised by the persons endangered, as, otherwise, the latter will themselves be guilty of negligence, and thereby furnish a good defence to the others.

The defendant objects, also, to the amount of the recovery as excessive.

The evidence shows that the plaintiff, a poor laboring woman, was struck by the car and thrown into the street, and so badly bruised in various parts of her person as to be unable for a long time to go out; that she yet remained, at the time of the trial, wholly unable to perform any work whatever, and still continued to suffer great pain. Several physicians, also, testified that such injuries might become permanent.

"Who can say that all this bodily pain and mental anguish suffered by this woman, together with the loss of her power to obtain a subsistence by her labor, perhaps for life, is over-compensated by a verdict of $1,600 %

The judgment should be affirmed.

Jones, J.

(dissenting). The plaintiff was a passenger in one of the Belt road cars, drawn by horses. While this car was being driven on its course up-town upon the company’s track, laid down in Tenth avenue, a collision occurred between it and one ,of the locomotives of the defendants, which, coming out of the depot inclosure, situated on the block bounded by Twenty-ninth and Thirtieth streets and the Ninth and Tenth avenues, and running on a track of the defendants which crosses the Belt road track at an angle a few feet south of the southerly line of Thirtieth street, struck the Belt road car at that point. By the collision the plaintiff received the injuries in respect whereof this' action was brought.

The plaintiff adduced proof which, if believed, showed that at the time the locomotive made its appearance outside the gate on the easterly side of the Tenth avenue, the Belt car was so near it that its only safety was to endeavor by an increase of speed to pass in front, inasmuch as if it broke up, the locomotive would strike it in the centre; that the locomotive could not be seen coming until it appeared outside the gate ; that no intimation was given of its coming, either by flag, or bell, or blowing the whistle, and that the only hallooing or shouting was just about the time of the collision.

The defendant adduced evidence showing that no flag was displayed (folio 137) in such manner as to attract attention; that from the avenue the locomotive can be seen coming while it is in the depot yard and before it reaches the gate; that when the Belt car was forty or fifty feet south of the point of collision several of the employes of the defendants warned the driver of the Belt car, and endeavored to cause him to stop by waving their hands and shouting' at him; one witness swore that he was standing forty-eight feet south of the point of collision when the Belt car passed him, and he then called to its passengers and .said, “Jump out of that car” (folio 117, compare with folios 60 and 62). Another witness swears he hallooed, “Wide awake! look out! stand aside! keep clear!” (folio 135). One of the bralcemen on the locomotive train began to break up before the engineer whistled “ on brakes ” (folio 151). The defendants’ proof tended to show that the engineer rang the bell and sounded the whistle of his locomotive.

The jury rendered a verdict against both defendants. The appellant, the Hudson River Railroad Company, moved for a new trial, on the ground, among others, that the verdict was against the weight of evidence. The motion was denied and the judgment was entered on the verdict. The defendant the Hudson River Railroad Company appealed from the judgment, and also from the order refusing to grant a new trial.

From the case on appeal it would seem that the preponderance of proof was clearly in favor of the appellant. But this is not of itself a sufficient reason for setting aside a verdict. It is the province of the jury to decide on conflicting evidence, and consequently when the evidence is not of such a character a's to make it error in the judge to refuse a motion to take the case from the jury, the verdict when rendered must stand, unless it is manifest that the jury have not passed on the conflicting evidence, but have rendered a verdict without any regard to the testimony in the case. Such cases do not often arise; but they do occasionally, and I think this is one of the instances.

The jury have found both the defendants guilty of negligence; a verdict wholly unwarranted by the evidence, and which does not pass on the conflicting evidence. The case shows a marked conflict between the witnesses Flanagan, O’Brien, Mc-Keon, and McDonald, and the witnesses Cuddy, Roach, Hogan, Lockett, A flick, McBride, and Smith. These are the only two sets of witnesses who throw any light upon the manner in which the collision occurred.

According to the testimony of the first set, it occurred through negligence on the part of the Hudson River Railroad Company, without any concurring negligence on the part of the Belt car.

According to the second set, it occurred through the negligence of the Belt car, without any concurring negligence on the part of the Hudson River Railroad Company.

If the jury had found against either company and in favor of the other, the verdict would have passed on this conflict, and it would not have been disturbed now, because the court thought the evidence preponderated the other way.

But (they have found a verdict which there is not an atom of evidence to support, and which has not passed on the conflict of testimony.

The verdict is not based upon any credit given to the first set of witnesses superior to that given to the second. The case therefore comes before the General Term without a verdict establishing such superiority, and it necessarily presents to the' Court the question whether the Court will weigh between the two sets of witnesses, and determine for itself to which set the greater evidence is due.

This, I think, the Court, even if it had the power, should not undertake to do, but should submit that question of credibility to be passed on by another jury, under suitable instructions by the then presiding' justice.

The judgment should be reversed, with costs to appellant to ■abide the event.  