May 11, 1906.
Robert C. Taylor, for the appellant.
Charles F. Brown, for the respondent.
Upon the question of whether the learned trial court erred in setting aside a verdict we must keep in mind the rule which controls an appellate court in approaching the consideration of that question, and which requires that it should not disturb the disposition made unless it appears that the discretion vested in the trial judge has been exceeded or abused. As said in Serwer v. Serwer ( 71 App. Div. 415): "When a verdict has been set aside by the trial court in the exercise of its discretionary power as against the weight of evidence, its determination ought not to be reversed by an appellate tribunal unless it is made to appear beyond all cavil that great injustice has been done to the defeated party, or unless there has been an abuse of discretion. ( Bannon v. McGrane, 45 N.Y. Super. Ct. 517; Slater v. Drescher, 72 Hun, 425.)" And in Silverman v. Dry Dock, E.B. B.R.R. Co. ( 69 App. Div. 23) it is said: "While it may be that there was not that preponderance of evidence which would justify an appellate tribunal in setting aside the verdict in the first instance, nevertheless it will not disturb the discretion of the trial court in so doing unless an abuse of that discretion appears."
With this rule in mind we have examined the record on the present appeal, and without expressing our view as to the impression produced by the plaintiff's testimony which was the evidence upon which the verdict practically rested, it is sufficient to say that it was neither clear nor convincing upon the question either of the defendant's negligence or of her own freedom from contributory negligence. When first examined on the trial her account did not make it appear just how the accident happened, and it was only after she had rested and a motion had been made to dismiss the complaint that she was permitted to reopen the case and to again testify, and it was upon that examination conducted by the learned trial judge that sufficient evidence was elicited to carry the questions to the jury.
Contradicting her version of the accident, we have not only the inherent improbabilities of the occurrence as she details it, but we have evidence on behalf of the defendant which, if credible, should have led the jury to find a verdict in favor of the defendant, and had the jury done so and the court refused to set it aside, we doubt if this court would have interfered with the decision thus reached.
This summary of the evidence as bearing upon the weight in favor of and against plaintiff's right to recover sufficiently indicates what impression a reading of this record will produce. In addition, the trial judge had the advantage of seeing the witnesses and their manner of testifying, an advantage which is not to be lightly disregarded where the question is presented as to the right which is vested in him to exercise his discretion on a motion to set aside a verdict. The character of witnesses as affecting their credibility is also an element, the force of which can with greater certainty be determined by the trial judge.
It would serve no useful purpose to detail the evidence disclosed by this record bearing upon the past habits of the plaintiff and necessarily affecting her character further than to remark that it was entirely proper and competent for the learned trial judge, upon the motion to set aside the verdict, to determine how far this militated against the weight which should be attached to her version of the accident. There is another consideration which should be referred to briefly.
The jury concluded to accept her version of the accident, and that they were greatly prejudiced against the defendant because of the effort made to exaggerate her failings and associations, bad as they were, is shown, we think, by the size of the verdict, which, considering the position in life, the extent of the injuries and the age of the plaintiff, was excessive. Were this the only question on this appeal it could be remedied. In Pesant v. Met. St. R. Co. ( 96 App. Div. 634), where a similar question was involved, this court reversed the order and reinstated the verdict upon condition that the plaintiff would stipulate to reduce it to a sum commensurate with the damages proved. In that case the real conflict was with respect to the amount of damage, whereas in the case at bar the question of whether the plaintiff sustained the burden of proof by establishing the two elements of negligence and freedom from contributory negligence by a fair preponderance of evidence was, as we have endeavored to point out, not free from doubt.
The learned trial judge having after consideration resolved the question of the weight of evidence adversely to the plaintiff, we are unable to say that he erred or exceeded the discretion which was vested in him in ordering a new trial. We have not the disposition, even if we had the power, to lightly interfere with the discretion of a trial judge in setting aside a verdict, because it is a power which is rightly vested in him and which he is justified and should exercise in every case where he believes that the jury have been affected either by prejudice or passion, or where, upon all the facts, he thinks that in the interest of justice there should be a new trial before another jury. This was peculiarily a case in which the court had the right to determine whether, in the interests of justice, a new trial was proper, and there being nothing in the record from which we can conclude that his discretion was improperly exercised, the order setting aside the verdict must be affirmed, with costs.
McLAUGHLIN, LAUGHLIN and HOUGHTON, JJ., concurred: PATTERSON, J., dissented.
Order affirmed, with costs. Order filed.