Opinion
January 13, 1922.
Joseph F. Keany [ Philip A. Brennan of counsel; Matthew J. Keany with him on the brief], for the appellant.
Feltenstein Rosenstein [ Moses Feltenstein of counsel; Harold R. Medina with him on the brief], for the respondent.
The action was to recover damages for personal injuries sustained by the plaintiff through the negligence of the defendant. The jury returned a verdict for the defendant, which was set aside as against the weight of the evidence. In an action of this character the burden is upon the plaintiff to establish by a preponderance of the evidence the negligence of the defendant and his own freedom from contributory negligence. In finding for the defendant the jury determine that the plaintiff has not sustained this burden. The court is not justified in setting aside a verdict for the defendant as against the weight of the evidence, unless it shall plainly appear that the preponderance in favor of the plaintiff is so great that the jury could not have reached their conclusion upon any fair interpretation of the evidence. When the right to a verdict depends upon the credibility of witnesses, and the testimony is not incredible or insufficient as a matter of law, the question of fact is for the jury, and their finding is conclusive. ( Jarchover v. Dry Dock, E.B. B.R.R. Co., 54 App. Div. 238; Mieuli v. N.Y. Queens County R. Co., 136 id. 373.)
The plaintiff testified that he was pushed by the crowd on the station platform against the side of the slowly-moving train and fell. In this he was corroborated by several witnesses. On the contrary, the defendant produced witnesses who testified that the plaintiff attempted to board the moving train and fell. The plaintiff's foot was caught between the contact shoe and a wooden guard above it and he was dragged fifteen or twenty feet. The physical facts would tend to corroborate the testimony of the defendant. The verdict for the defendant should not have been set aside.
The order will, therefore, be reversed, with costs to the appellant, and the verdict in favor of the defendant reinstated.
CLARKE, P.J., DOWLING, SMITH and GREENBAUM, JJ., concur.
Order reversed, with costs, and verdict reinstated.