MICHAEL CARMODY, an Infant over the Age of Fourteen Years, by DANIEL A. GOLDEN, as His Guardian ad Litem, Respondent,
THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.
APPEAL by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 21st day of March, 1911, upon the verdict of a jury for $40,000; also from an order entered in said clerk's office on the 20th day of March, 1911, denying the
defendant's motion for a new trial made upon the minutes, and also from an order entered in said clerk's office on the 22d day of May, 1911, denying the defendant's motion for a reargument of the former motion for a new trial and also denying its motion for a new trial on the ground of newly-discovered evidence.
I. R. Oeland [Alexander S. Lyman with him on the brief], for the appellant.
Herbert N. Warbasse, for the respondent.
The plaintiff, a carpenter's apprentice, about twenty years of age, lost his right leg from about four inches below the knee, and his left foot, in an accident upon the defendant's railroad on the 25th day of September, 1910. He was, at the time of the accident, engaged in stealing a ride upon one of defendant's freight trains at or near One Hundred and Twenty-ninth street in the borough of Manhattan, and two radically different theories of the accident were presented to the jury. The plaintiff's theory was that the plaintiff had succeeded in catching onto the defendant's freight train while at One Hundred and Thirty-first street; that he climbed up between the third and fourth cars from the engine on a train consisting of forty-one cars, and that when he had reached a point where he was holding onto the iron handrail at the top of the car, about to climb upon the top of the car, the conductor of the train appeared from the rear end of the train, stepped over upon the car where the plaintiff was holding onto the rail, his face toward the engine, and began kicking the plaintiff's fingers, forcing him to let go and to fall between the cars, with the result above stated. The defendant's theory of the accident was that the plaintiff attempted to get onto the train at the crossing of One Hundred and Twenty-ninth street, in company with some other boys; that while the plaintiff was running alongside of the train, in the direction in which the train was moving, looking over his shoulder for an opportunity to grab the handrail at the side of the car, another boy ran in front of him, intent upon the same object, and the two coming
together, the plaintiff was tripped and he fell under the wheels, producing the injuries for which the plaintiff has a verdict of the jury for $40,000. The defendant made the usual motion to set aside the verdict under the provisions of section 999 of the Code of Civil Procedure, and subsequently moved the court for a new trial, upon the ground of newly-discovered evidence, and from the order entered, denying the motion, the defendant appeals to this court. An appeal is likewise taken from the judgment and order denying defendant's motion to set aside the verdict.
Practically the only question raised on the appeal from the judgment is that the verdict is against the weight of evidence, and as both of the appeals are to be considered together it is proper first to look into the evidence to determine whether this point is well taken. In considering a similar case, the court pointed out that the plaintiff was in the act of violating a penal statute, and that the defendant railroad company owed him no duty except not to wantonly injure him, and in discussing the rights of the defendant the court say: 'This case, it seems to me, will furnish a precedent for a new class of actions under the law of negligence, since any one, however careless or reckless, may, in defiance of the statute, board a railroad freight train, and when the conductor undertakes to remove him, unless he uses all the circumspection and gentleness possible, the party removed may, upon his own testimony, recover against the railroad. We do not mean to say that this court can always prevent such results, since the questions are, in their nature, questions of fact to be determined at the trial and by the verdict of a jury. All that we mean to say now is that when a railroad company attempts to defend itself in a court of justice against such a claim as this, it is entitled to the benefit of every fact and circumstance that can have any legitimate bearing upon the nature of the transaction, and it has the right to be accorded the benefit of every principle or rule of evidence that has any tendency to aid in its defense.' ( Barrett v. N.Y. C. & H. R. R. R. Co., 157 N.Y. 663, 667.) One of the rules of evidence is that the plaintiff shall establish his case by a fair pre-ponderance of evidence; and where the weight of evidence is against the verdict of the jury, there is a
failure to meet this condition, and the plaintiff is not entitled to recover, no matter how grievously he may have been injured.
In determining the weight of evidence we should take into consideration the inherent probabilities of the case; the relative likelihood of the two stories. Here are two distinct theories of this accident. In the one case there is absolutely no liability on the part of the defendant, while in the other the liability of the defendant depends solely upon the conduct of one of its servants, in which the servant must have violated his duty, not only to the plaintiff, but to the defendant, for it may not be assumed that the defendant ever authorized, even by implication, the commission of a crime, and the conduct alleged against the defendant's conductor is nothing less than a crime. The evidence produced by the plaintiff has all of the 'stage settings' to bring it within the rule of liability laid down by the courts, but is lacking in that naturalness which accompanies entirely credible testimony; the witnesses testify with a sameness which might suggest careful pre-paration to meet not only the rule of liability, but the past criticisms of the courts in similar cases. The plaintiff has a vital interest in this case; his only hope of securing a large sum of money from the defendant is to establish that while he was himself engaged in the commission of a crime, the defendant's servant, by a higher crime, inflicted the injuries which he has sustained, and his principal supporting witness is his companion in that crime. Looking into the probabilities, we have the testimony of the plaintiff and his companion that they had never had any difficulty with the defendant's conductor; that they had never seen him up to the very moment of the alleged assault, so that it must be evident that the only motive he could have had for committing any kind of an assault upon ...