Szuchy v. Hillside Coal & Iron Co.

• Decision Date: 06 October 1896
• Parties: SZUCHY v. HILLSIDE COAL & IRON CO.
• Court: New York Court of Appeals Court of Appeals

150 N.Y. 219

44 N.E. 974

SZUCHY

v.HILLSIDE COAL & IRON CO.

Court of Appeals of New York.

Oct. 6, 1896.

Appeal from supreme court, appellate division, Second department.

Action by John Szuchy, an infant, by John Stotzky, his guardian ad litem, against the Hillside Coal & Iron Company, for personal injuries. A judgment for plaintiff and an order denying a motion for a new trial were affirmed by the appellate division of the supreme court (37 N. Y. Supp. 457), and defendant appeals. Dismissed.

Frederick W. Catlin, for the motion.

Henry L. Sprague, opposed.

MARTIN, J.

This action was for damages sustained by an injury alleged to have been caused by a vicious mule owned by the defendant, which it directed the plaintiff to lead, without in any way warning him of its vicious habits or character. Owing to the viciousness of the animal, the plaintiff was thrown under the wheels of a car, and received a personal injury which resulted in the loss of one of his legs. The case was tried and decided upon the theory that the defendant knew the animal was vicious, and directed the plaintiff to use it without in any way apprising him of the danger attending such service. The question principally litigated upon the trial was whether the defendant knew of its vicious habits and propensities. The trial court held that there was evidence tending to show that fact, and thus the question was one which should be submitted to the jury. It was so submitted, and the verdict was for the plaintiff. From the judgment entered thereon the defendant appealed to the appellate division of the supreme court, where it was affirmed. That court ‘unanimously decided that the verdict of the jury is supported by the evidence.’

Upon the trial, at the close of the plaintiff's case, the defendant moved for a nonsuit on the grounds that there was no proof of the defendant's negligence, that knowledge on the part of the defendant of the viciousness of the mule was not shown, and that it was not proved that the plaintiff was free from negligence. This motion was denied, and the defendant excepted. A similar motion was made when the evidence was closed, which was also denied, and the defendant duly excepted. The only question raised by these exceptions was whether there was sufficient evidence to sustain the verdict. Schwinger v. Raymond, 105 N. Y. 648, 11 N. E. 952.

There were several exceptions by the defendant to the rulings of the trial court upon the admission and rejection of evidence. These we have carefully examined, and are of the opinion that they are without merit, and manifestly frivolous. That appears from a mere inspection of the record. Therefore, so far as that class of exceptions is concerned, the case presents no question of law that can be reviewed upon this appeal. Wright v. Hunter, 46 N. Y. 409;Dalzell v. Railroad Co., 119 N. Y. 626, 23 N. E. 487; Stoughton v. Lewis, 2 How. Prac. (N. S.) 331.

This brings us to a consideration of the only important question involved in this motion, which is whether this court can review the rulings of the trial court in denying the defendant's motions for a nonsuit. Section 9 of article 6 of the constitution, as amended in 1894, provides: ‘After the last day of December, one thousand eight hundred and ninety-five, the jurisdiction of the court of appeals * * * shall be limited to the review of questions of law. No unanimous decision of the appellate division of the supreme court, that there is evidence supporting or tending to sustain a finding of fact or a verdict not directed by the court, shall be reviewed by the court of appeals. * * * The provisions of this section shall not apply to orders made or judgments rendered by any general term before the last day of December, one thousand eight hundred and ninety-five, but appeals therefrom may be taken under existing provisions of law.’ Section 191 of the Code of Civil Procedure, as amended in 1895, which limits the right to appeal from final orders or judgments, declares, in the language of the constitution, that ‘no unanimous decision of the appellate division of the supreme court, that there is evidence supporting or tending to sustain a finding of fact or a verdict not directed by the court, shall be reviewed by the court of appeals.’ Thus we have the mandate of both the constitution and the statute forbidding the review by this court of any unanimous decision of the appellate division that there is evidence supporting a verdict; not directed by the court. In this case, the decision having been unanimous, rendered since December 31, 1895, and the verdict not having been directed by the court, it falls within the provisions of the constitution and statute.

The appellant contends that certain evidence was admitted that was incompetent; that, although not objected to, yet, as it was incompetent, it was insufficient to sustain the verdict; and hence the court erred in not granting its motion for a nonsuit. We do not deem it necessary to examine or determine...