45 N.Y. 628, Barrett v. Third Ave. Railroad Co.
| Date | 06 June 1871 |
| Docket Number | . |
| Citation | 45 N.Y. 628 |
| Parties | ANNA BARRETT, Respondent, v. THE THIRD AVENUE RAILROAD COMPANY, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
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Argued May 25th, 1871.
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COUNSEL
Clarkson N. Potter, for the appellant. Satisfaction as to one of two tort feasors is satisfaction as to both. ( Knickerbocker v. Hawes, 8 Cow., 111; Livingston v. Bishop, 1 John., 290;
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Brown v. Kinchelse, 3 Cold., 192; Merchants' Bank v. Curtis, 37 Barb., 317; Ruhle v. Turner, 2 H. & N., 38; Bacon's Abridg., Tit. Release, 625; Robertson v. Smith, 18 John., 481; Pouting v. Watson, 33 Eng. L. & E., 116; Pearce v. Pearce, 25 Barb., 243.)
Elial F. Hall, for the respondent. On the question of liability. ( Bowen v. Central R. R. Co., 18 N.Y. 410; Deyo v. Central R. R. Co., 34 N.Y. 9; Maverick v. Eighth Avenue R. R. Co., 36 N.Y. 381; Story on Bailments, § 601; Ingalls v. Bills, 9 Metc., 1; Caldwell v. Murphy, 1 Duer, 241.) On the question of compromise with the Harlem Company. (4 Abbott's Dig., 720; De Jeng v. Bailey, 9 Wend., 336; Noke v. Ingham, 1 Wilson, 90; Parker v. Lawrence, Hobart's R., Am. ed., 70; Salmon v. Smith, 1 Saunders' R., 207.) On the question of the right of the jury to reject evidence, in their belief false. ( Dunn v. The People, 29 N.Y. 523; Lee v. Chadsey, 2 Keyes, 543.) The issue of negligence must be submitted to the jury. ( Wolfkiel v. Sixth Avenue R. R. Co., 38 N.Y. 49; Ernst v. Hud. R. R. R. Co., 35 N.Y. 9, and 39 N.Y. 61.) It is no defence to this action that the negligence of the Harlem Company contributed to bring about the collision. ( Clark v. Eighth Avenue R. R. Co., 36 N.Y. 138; Maverick v. Eighth Avenue R. R. Co., 36 N., 378; Webster v. Hud. R. R. R. Co., 38 N.Y. 260.) On the question of a new trial for surprise. ( People v. Superior Court, 10 Wend., 285; Trisler v. Eheholt, 5 Rob., 609; Bell v. Thompson, 2 Chitty, 194; Bun v. Hoyt, 3 John., 255; 3 Gra. & W. on New Trials, 940, 941, 982, 983; Stoddard v. L. I. R. R. Co., 5 Sandf., 180; Lewis v. Blake, 10 Bosw., 199; Cothran v. Collins, 29 How., 155; Lawrence v. Ely, 38 N.Y. 42.)
ALLEN, J.
There was no question of contributory negligence on the part of the plaintiff; she was injured without fault on her part, and the question upon the merits was, whether the collision causing the injury was exclusively the result of the negligent or careless acts of the agents and servants of the defendant
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having the control and management of the car in which the plaintiff was a passenger, or of such negligence in connection with negligence on the part of those in charge of and controlling the movements of the colliding car on the Harlem road. If the acts of the defendant's servants contributed to the injury, the defendant must respond in damages to the plaintiff, although the negligent acts of the persons in charge of the other car also contributed to the same result, and the comparative degree in the culpability of the two will not affect the liability of either. If both were negligent in a manner and to a degree contributing to the result, they are liable jointly and severally. ( Webster v. Hudson River R. R. Co., 38 N.Y. 260.)
There was no motion for a nonsuit on the trial, or request to the judge to direct a verdict for the defendant for the want of any sufficient evidence to authorize a recovery by the plaintiff. It was assumed, as well by those representing the defence, as by the court, that there was sufficient evidence of negligence to carry the case to the jury. The question whether the defendant was in fault, or whether the collision was wholly attributable to the negligence of the Harlem company and its driver, does not arise upon any exception taken at the trial, but is sought to be raised by a review of the order of the court below, overruling a motion for a new trial, and directing a judgment upon the verdict for the plaintiff. The motion was upon a case containing the evidence, and upon affidavits of newly discovered evidence.
The court, at Special Term, granted the application upon terms, and gave the defendant a new trial on the payment of the costs of the trial and of opposing the motion. The order does not indicate upon which of the two grounds, newly discovered evidence, or that the verdict was against the weight of evidence, the relief was granted. The terms imposed as a condition of the order were proper in either case, and show that the order was made by the court in the exercise of a legal discretion as a favor, and not as a matter of right for error in law. This order was reviewed by the General Term,
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and judgment ordered pursuant to the verdict. The appeal from the judgment brings up for review the order refusing a new trial, as an order involving the merits and necessarily affecting the judgment, so far as the matters decided are reviewable here. Motions to set aside verdicts as contrary to evidence, as well as motions for a new trial upon the ground of newly discovered evidence, are not governed by any well defined rules, but depend in a great degree upon the peculiar circumstances of each case. They are addressed to the sound discretion of the court, and whether they should be granted or refused involves the inquiry whether substantial justice has been done, the court having in view solely the attainment of that end. ( Pres't, etc., of Brooklyn v. Patchin, 8 W. R., 47; Gray v. Bridge, 11 Pick., 189.)
The exercise of this discretion is not reviewable on error. ( Moore v. Foster, 10 B. Monr., 255; Pelletreau v. Jackson, 7 W. R., 471; Pr. Chancellor in Pres't, etc., of Brooklyn v. Patchin, supra; Hoyt v. Thompson's Ex'rs, 19 N.Y. 207.) The defendant, by not objecting to submitting the question of negligence to the jury, conceded that there was evidence tending to prove the fact of negligence, and consented to a decision of the question by that tribunal, and having taken his chance of a favorable verdict, cannot now be heard to allege that the verdict is without evidence, and, therefore, against law. The question of law, sought to be made here, should have...
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