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and 118 New York State Reporter appellant, presents an entirely different question. There the plaintiff had fully performed a prescribed condition, which entitled him, under their agreement, to be made the defendant's sole agent; and the latter, after receiving the benefit of the plaintiff's performance, repudiated the contract, and refused to create the agency. It was held that the plaintiff was entitled to recover the lost value of the contemplated agency, as the measure of damages for the breach of the contract. So, in Bathrick v. Coffin, 13 App. Diy. 101, 43 N. Y. Supp. 313, the plaintiff had rendered valuable services, the full proceeds of which the defendant had received; and the defendant thereupon arbitrarily terminated the contract, without requiting the plaintiff even for the work then actually done. The complaint was dismissed at the trial term, and it was held upon appeal that there was sufficient evidence to require submission of the question of damages to a jury. Here, however, the plaintiff has not only been fully paid for all services actually rendered, but admits the possession of a large additional cash balance. His grievance is confined to the fact that his principals have seen fit to terminate an agency which was not created for any definite period, but under which, while it was in existence, he has been fully compensated in accordance with its terms. The right to terminate the agency seems clear, from the authorities herein considered, and it necessarily follows that the complaint fails to state a good cause of action. The order should be affirmed.

Order affirmed, with $10 costs and disbursements. All concur.

EAGAN v. HYDE. (Supreme Court, Appellate Term. November 6, 1903.) 1. VERDICT-SETTING ASIDE-SUFFICIENCY OF GROUNDS.

Where there was a fair conflict in the evidence, and nothing to indicate that the jury was actuated by partiality or passion, and the evidence did not preponderate in favor of the defendant, and the trial court merely stated that he was convinced that the plaintiff's case had not been made out by a fair preponderance of the evidence, it was error to set aside a

verdict for plaintiff. 2. SAME-New TRIAL.

Where the trial court set aside a verdict for plaintiff on the express ground that he was convinced that plaintiff's case had not been made out by a fair preponderance of the evidence, it was error to dismiss the com

plaint and not give plaintiff an opportunity for a new trial. Appeal from City Court of New York.

Action by Mary Eagan against James W. Hyde, as executor, etc. From an order setting aside a verdict for plaintiff and dismissing the complaint, she appeals. Reversed.

Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.

Peck & McCann, for appellant.
Parker & Aaron, for respondent.

1 1. See New Trial, vol. 37, Cent. Dig. $ 148.

BLANCHARD, J. In this action there is a demand for reversal of the judgment on two grounds, and both are well taken and sustained.

The court erred in setting the verdict aside. There was a fair conflict in the evidence, and nothing to indicate that the jury was actuated or influenced by partiality or favor, prejudice or passion. The evidence did not preponderate in favor of the defendant. Upon the evidence disclosed in the record, the learned trial court could not assume, as matter of law, to determine the facts, but should have left them to be determined by the jury. The verdict of the jury should not have been disturbed by the court. The rule of law as to setting aside a verdict is so well settled that only brief reference will be made to cases.

In Swartout v. Willingham, 6 Misc. Rep. 182, 26 N. Y. Supp. 772, the court says:

"A new trial cannot be granted where the evidence is conflicting on material points, and where that is the case the court has no discretion, but is bound to deny it, even though the conclusion reached by the jury may be one which the court would not have reached upon the testimony.

In Layman v. Anderson, 4 App. Div. 126, 38 N. Y. Supp. 884, the learned court says:

"If the verdict of the jury may be set aside in any case where the court is not satisfied with it, if the court must be satisfied as well as the jury, then the court may as well dispense with the jury altogether and make the decision itself. This, of course, is not the rule where the case is one that should properly be submitted to the jury. The verdict must stand whether it is satisfactory to the court or not."

The court erred in granting the motion to dismiss the complaint. A mere casual reading of the evidence reveals more than enough to bring the plaintiff's case within the rule laid down in McDonald v. Metropolitan Street Railway Company, 167 N. Y. 66, 60 N. E. 282, and cases there cited. The learned court itself did not maintain that the plaintiff had produced no evidence, or no more than a scintilla, in setting aside the verdict and dismissing the complaint. In the printed case the court says: “I am convinced that the case has not been made out by a fair preponderance of the evidence.” While this view of the weight of the evidence might justify the setting aside of the verdict, it is not sufficient to justify the dismissal of the complaint. In setting aside the verdict, it was the duty of the trial court to have given the plaintiff an opportunity for a new trial, and the failure to do so is reversible error. The verdict was not contrary to the evidence, nor against the weight of evidence. No exceptions were taken by the defendant to the admission of evidence or the charge of the court. All the rights of the defendant were protected by the very careful charge of the court, and no proper or necessary interest can be subserved by granting a new trial.

The judgment and order must be reversed, and judgment directed for the plaintiff upon the verdict of the jury, with costs, and the costs and disbursements of this appeal. All concur.

and 118 New York State Reporter

PRINCE V. THIRD AVENUE R. CO.

(Supreme Court, Appellate Term. November 6, 1903.) 1. STREET RAILWAYS-NEGLIGENCE — COLLISION WITH VEHICLE - RIGHT TO

CROSS TRACK-INSTRUCTIONS.

In an action against a street car company for personal injuries caused by a collision between plaintiff's wagon and a car, an instruction that plaintiff had the right to cross the track when he saw a reasonable opportunity to do so, even though it required the motorman to slacken speed, and that the rights of drivers of vehicles and those of electric cars were reciprocal, so that the gripman is bound to see to his charge as diligently as the driver of a vehicle to his, was not objectionable as substituting the mental process of the driver for the judgment of the jury as to whether the attempt to cross was reasonable.

Blanchard, J., dissenting.
Appeal from City Court of New York.

Action by Adolph Prince against the Third Avenue Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.

H. A. Robinson (Bayard H. Ames and F. Angelo Gaynor, of counsel), for appellant.

Emanuel J. Myers and Arthur Weil, for respondent.

BISCHOFF, J. Evidence, which the jury could properly accept, justified the finding that the plaintiff's wagon changed its course, in an attempt to cross the track, when the car was three-quarters of a block away, and the accident could well be attributed to the negligence of defendant's servant in operating the car with a total disregard of the situation before him. The recovery is not opposed to the weight of the evidence, and sufficient ground for reversal is not afforded, in my view, by an instruction to the jury to which the appellant has directed our attention.

The main charge appropriately defined the duty of care owing from the persons in control of the wagon and car, but later, in answer to a request by defendant for an instruction that the plaintiff's driver was bound “to wait at the approach of a car, and not delay its progress,” the court said:

"I charge that the plaintiff had the right to cross the track when he saw a reasonable opportunity to do so, even though it required the motorman of the defendant's car to slacken its speed. The rights of drivers of vehicles, and those of gripmen of electric cars are reciprocal, so that the gripman of a car is bound to see to his charge as diligently as it is the duty of the driver of a hack or of any other vehicle to see to his charge."

The attention of the court and jury, when this instruction was given, was directed to the proposition, asserted by defendant, that the plaintiff's lawful right to cross the tracks depended upon his not delaying a car; and the words "reasonable opportunity," as used by the court in this connection, were in no sense inconsistent with the main charge as to the use of reasonable care. Nor did the charge substitute the mental process of the driver for the judgment of the jury as to whether the attempt to cross was reasonable. The words used did not make the driver's judgment the test, but the reasonableness of the opportunity which "he saw." What he did see, and whether it was an opportunity to be seized in the exercise of due care, was obviously left to the jury; and, taking this charge as a whole, I cannot hold that there was any inconsistency, nor that the jury, in the usual understanding of words, could properly have been misled to the ap pellant's prejudice.

The judgment should be affirmed, with costs.
FREEDMAN, P. J., concurs.

BLANCHARD, J. (dissenting). The action was brought to recover damages for injury to plaintiff's wagon, harness, and merchandise by reason of a collision between one of the defendant's cars and plaintiff's wagon. The plaintiff asserted that the defendant was negligent, and that such negligence was the sole cause of the collision. This the defendant denied, and alleged contributory negligence on the part of the plaintiff. The proofs were sufficient to justify the submission of these questions to the jury, and we should not be disposed to disturb the verdict of the jury, except for that part of the charge of the learned trial court which was as follows:

"I charge that the plaintiff had the right to cross that track when he saw a reasonable opportunity to do so, even if it required the motorman of the defendant's car to slacken its speed.”

We think this part of the charge of the court, both upon principle and authority, reversible error. It was for the jury, and not for the court, to say what the plaintiff had a right to do under the circumstances. The law required him to be reasonably prudent, and it was for the jury to say whether such prudence was exercised. It was not negligence, as a matter of law, for the motorman to fail to slacken the speed of the car; but it was for the jury to determine whether, under the circumstances, he was negligent, or not, in failing to do so. The language of Mr. Justice Hatch in McDonald v. Metropolitan Street Railway Company, 75 App. Div. 559, 560, 78 N. Y. Supp. 284, 285, writing for the entire court, is much in point. In that case the plaintiff's intestate had been killed. The learned justice said:

"As we construe this charge, it was left for the jury to determine whether the degree of care which the deceased exercised was such as he deemed adequate; and, if so, it answered the requirements of the law. Such is not the rule. The degree of care imposed upon the deceased was such as a reasonably prudent person of the same age would have exercised under the same or similar circumstances. The charge as made, however, substitutes for such care a mental process on the part of the deceased in reaching such conclusions as to what he deemed to be adequate care. Clearly, such is not the rule. If it were, every act of the party would be sustained, as such action would necessarily involve the degree of care deemed by him to be adequate in committing the act."

In Goetz v. Metropolitan, 54 App. Div. 369, 66 N. Y. Supp. 669, the court said:

“It is apparent that the portion of the charge just referred to, being a part of the main charge, was inconsistent with the portion first alluded to, which was made at the request of the defendant at the close of the main charge. and 118 New York State Reporter Under such circumstances, we think the final instruction, in so far as it was inconsistent with what had theretofore been said, qualified the former to that extent, and was the one which was to govern the jury in their deliberations."

The judgment and order ought to be reversed, and a new trial ordered, with costs to appellant to abide the event.

VENUTA V. NEW YORK, W. & C. TRACTION CO. et al. (Supreme Court, Appellate Division, Second Department. November 13, 1903.) 1. STREET RAILWAY-PERSON ON TRACK-INJURY-INSTRUCTION-RIGHT TO BE

ON TRACK

In an action, by a person riding in a wagon, against a street railway company, for an injury occasioned by the collision of a car with the vehicle, it is error to instruct that a person on a highway has no right to be on a street railway track when a car comes up, and no right to make a car slow up, though the court adds that, "To put it more precisely, the law requires them to use reasonable prudence to be off when the car comes up," and that "he has a right to be there, but with that right goes the duty to be vigilant to be off before the car comes up."

Woodward, J., dissenting.
Appeal from Trial Term, Westchester County.

Action by Antonio Venuta against the New York, Westchester & Connecticut Traction Company and another. From a judgment for defendants and from an order denying a new trial, plaintiff appeals. Reversed.

Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.

Odell D. Tompkins, for appellant.
Charles W. Church, Jr., for respondents.

WILLARD BARTLETT, J. We are of opinion that this judgment must be reversed on account of error in the charge. The suit grows out of a collision between one of the cars of the New York, Westchester & Connecticut Traction Company and a wagon upon which the plaintiff was riding. Speaking of the relative rights and duties of the motorman of the car and the driver of the wagon, the learned trial judge told the jury, among other things:

"It is the duty of the motorman, of course, to carry his passengers with reasonable expedition. That is what these companies are for. Their business is not to lally-gag from here to Mt. Vernon when you get in the cars, but to carry you with reasonable speed. * * The car has the right of way over the track. The law gives it the right of way. Nobody has the right to be there when the car comes up. Anybody there owes it a duty to be off before the car comes up; or, to put it more precisely, the law requires them to use reasonable prudence to be off when the car comes up. You have no right, even, to make a car slow up. You have no such right whatever. You have not the right to get on a railroad track and slow a car up. It is your duty to use reasonable care to be off by the time the car comes up, because the car is carrying the public. There may be fifty people in the car, or thirty, or twenty, who are not to be stopped by one person who gets on the track. On the contrary, that one person's duty is to use reasonable care to be off. He has a right to be there, but with that right goes the duty to be vigilant to be off before the car comes up."

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