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 New York on the 15th day of December, 1910, upon the verdict of a jury for $1,838, and also from an order entered in said clerk's office on the 7th day of December, 1910, denying the defendant's motion for a new trial made upon the minutes.
Robert A. Kutschbock of counsel [Charles C. Paulding, attorney], for the appellant.
Herman N. Hansen of counsel [F. Howard Collins, attorney], for the respondent.
This is an action by a passenger on one of defendant's trains to recover for the loss of $1,180 in money and a gold watch of the value of $50 lost or destroyed in a railroad accident near Pawling. The law of this case was settled so far as the Trial Term and this court are concerned upon the former appeal (109 A.D. 709).
Upon the former trial the complaint had been dismissed before the taking of any evidence. We said: 'The dismissal of the complaint was error. The evidence should have been taken, and the questions thereon arising would have been the negligence of the defendant, the freedom from contributory negligence of the plaintiff, and whether or no the watch was a 'necessary, convenient and ornamental, reasonable, personal chattel,' and whether the money or any part thereof came within the definition of a reasonable and suitable amount for the journey contemplated.'
One of the objections raised in the dissenting opinion, that there was no allegation in the complaint that the money lost was being carried to defray the expenses of the journey of the plaintiff or his wife, or that it was necessary for that purpose, has been met by an amendment of the complaint allowed by the Special Term upon proper terms.
The trial court tried the case according to the rules laid down by our opinion. The main part of the appellant's brief is confessedly a reargument of the case as formerly presented. The sole question to be now considered is the claim that 'the verdict should be reversed on the ground of the inherent improbabilities of the plaintiff's story.'
The defendant's negligence and its responsibility for the accident are not questioned and could not be. The road was washed out, the rails spread, the cars were derailed and overturned and defendant made no attempt to prove due care on its part. Indeed, it appeared in the evidence that defendant
had settled with plaintiff's wife, who had three ribs broken, and had lost four rings, a watch and a silver bag of her own which were in the handbag alleged to have been lost. Of course, there could be no contributory negligence so far as the derailment of the train was concerned. Is the verdict, based on the finding of the jury, first, that plaintiff had in his possession $1,180 which was lost or destroyed at the time of the accident, and, second, that that was a reasonable sum for the journey he had in contemplation, against the weight of the evidence?
I think there was a pure question of fact for the jury. Plaintiff testified that he had been a saloonkeeper in Jersey City; that he had sold out; that he was worth $8,000; that he had sent his furniture over to his mother's; that he had packed two trunks and left them with a friend to be called for; that his wife was visiting her aunt at Amenia, N.Y. ; that, intending to start on a four months' pleasure trip, he drew $1,180 out of the bank and went to Amenia to get his wife. He produced his bank book and attempted to show that fact by it. His counsel asked: 'What bank did you draw this $1,180 from?' The question was objected to and sustained. Afterwards plaintiff testified: 'I have got the pass book of the bank showing that I drew out this money before I went to Amenia. Q. I ask you if this is the pass book (Exhibiting)? Defendant's counsel: Objected to as incompetent, irrelevant and immaterial. The Court: I do not see why that is competent or why it is necessary for you to show where you got the money. No question but what he had it.'
The wife testified that her husband brought the money up and gave it to her and she counted it and put it in her bag and she saw it there the next morning when they started on the train. It seems to me the defendant is estopped by its own conduct from questioning the fact that the plaintiff did have in his possession at that time the amount which he claims. Appellant claimed upon the argument that all of its train employees went around getting names of people who were injured and had lost property and that this plaintiff's name and that of his ...