Friedman v. Consolidated Traction Co. , 53 N.Y.S. 410 ( 1898 )

Conlan, J.

This is an appeal from a judgment entered upon a verdict at the Trial Term of this court, and from an order denying a motion for a new trial.

The action was brought to recover for personal.injuries alleged to have been sustained by the plaintiff while á passenger on one of the cars of the defendant, and to have been caused solely by the defendant’s negligence.

The theory of the plaintiff is that he signaled the conductor of the car to alight at a certain point on the route, and that in consequence thereof the car came to a full Stop, and when he attempted to get off, and with one foot upon the car - and the other upon the ground, and having hold of the handle upon the car with his right hand, the car was suddenly started, and afterwards he was thrown to the ground, and thus suffered the injuries for which recovery is sought.

There is some dispute as' to which side of the car the plaintiff got off.

He, himself, testified that it was the left side, and at least one of the defendant’s witnesses agrees with' him in this particular.

The evidence of the plaintiff is positive on the point that the car had fully stopped when he attempted to get off, and for this reason we think the motion for a nonsuit was properly denied at the close of - the plaintiff’s case.

Upon the question whether the car was fully stopped or not, there is a sharp conflict of evidence, but the trial judge submitted the whole case on all of the evidence to the jury in a well-considered charge, to which no exception was taken, and we should only be usurping the province of the jury if, upon the case as presented by the printed record before us, we were to disturb its finding.

We are unwilling to say that a verdict of $600 under all the circumstances of the case was excessive, and are, therefore, of the opinion that the judgment and order appealed from must be affirmed, with costs.

Schuchman, J., concurs.

Judgment and order affirmed, with costs.