#### MANNING v. ATLANTIC AVE. R. CO.

(Supreme Court, General Term, Second Department.

December 2, 1895.)

Appeal—Preponderance oe Evidence.

A verdict for plaintiff will not be set aside on appeal, as against the preponderance of evidence, merely because defendant produced the greater number of witnesses.

Appeal from circuit court, Kings county.

Action by Catherine Manning against the Atlantic Avenue Railroad Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff,- defendant appeals.

Affirmed.

Argued before BROWN, P. J., and PRATT, J.

Bergen & Dykman, for appellant.

Foster L. Backus, for respondent.

PRATT, J.

This is an appeal from a judgment entered upon the verdict of a jury. The action was brought to recover damages for injuries alleged by the plaintiff to have been received as a result of the sudden starting of the defendant’s car while the plaintiff was boarding it from the rear platform. The defense is that the car did not start, but that plaintiff slipped and fell. Of the fact that the plaintiff did fall and was injured there is no dispute.

The principal ground urged by the appellant for reversal is that the verdict was against the weight of evidence. It is not sufficient to reverse a case, upon the ground that the jury has found a verdict against the weight of evidence, that the court, had they been sitting *202as a jury, would have rendered a different verdict. It is true that the defendant had a greater number of witnesses than the plaintiff, but the jury had the right to believe a less number of witnesses. They were better judges of the credibility of the witnesses than the court, who have before them simply the testimony as printed in the appeal book.

The case is in a nutshell. The simple question is whether the-car started while the plaintiff was trying to get upon the rear platform. The jury had the right not only to consider the sworn testimony, but they also had the right to weigh all the facts and circumstances of the case. The places upon the plaintiff’s body where she was injured which were exhibited to the jury,. and the positions where the witnesses claimed to have stood, were all facts to be considered by the jury in arrix ±ng at a verdict. The plaintiff claimed that, just as she was stepping upon the car, it started; and her witnesses testified that the car started, moved 10 feet, and then stopped; and the witness Fragner, who testified for the defendant, stated that the car was standing still while she was lifted up and carried away. But there was evidence in the case that Fragner did not arrive upon the ground until after the car had started and the woman fell.' Fragner corroborated the plaintiff’s witness -Bell in swearing that the car was opposite an iron post, while the defendant claimed that the car was upon the crosswalk, where it stopped to receive the plaintiff.

We do not think that there was such a preponderance of evidence in favor of the defendant as to justify a reversal, upon the ground that the verdict was against the weight of evidence.. We have examined the exceptions in the case, and are of the opinion that they are not well taken. The question put to the witnessFragner, where the car stood when he arrived at the scene of the accident after it occurred, was competent and relevant. If the car stopped at the crosswalk, and, when Fragner arrived, the car was not upon the crosswalk, but was opposite an iron post, the question was very material, as showing that the car must have started after it first stopped.

Judgment affirmed, with costs.