Drathman v. Cohen

SHAW, J.

This is an action against the defendants to recover damages suffered by the plaintiff from the alleged negligence of the defendants. Answers were filed, and the ease tried by a jury, resulting in a verdict in favor of the plaintiff, whereupon the defendants moved for a new trial, upon several grounds, among which was that of the insufficiency of the evidence to justify the verdict. The court granted the motion upon that ground alone, and from the order granting the motion the plaintiff appeals.

In the granting of new trials, the trial court has much dis

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cretion in considering whether or not the evidence justifies the verdict. Its duty is to grant the new trial whenever, upon the whole case, it believes that injustice has been done in that respect. Upon considering the evidence, as set forth in the transcript, we cannot say that the court erred in holding that the verdict in this case was not justified by the evidence.

The plaintiff, however, claims that the specifications of insufficiency of the evidence contained in the statement on motion for a new trial are not sufficient to present the question. The charge in the complaint against the defendants was, that they were engaged in manufacturing picture-frames, mirrors, and moldings; that in connection with the manufacture there was a rip-saw which was used to cut boards into strips; that the plaintiff was ignorant of the method of operating the saw, and had had no experience therein, and was ignorant of the dangers attending the same, all of which the defendants well knew; that defendants also knew that the operation of said saw was attended with danger, but nevertheless negligently directed plaintiff to run the said saw and cut therewith certain pieces of board, and neglected to instruct him touching the work, or warn him of the difficulties or dangers attending the same; that thereupon plaintiff proceeded to operate the saw, and in so doing, by reason of his ignorance of the dangers and of the manner of operating the same, his hand came in contact with the saw, and he was injured. The answer denies specifically the allegations of negligence on the part of defendants, and affirmatively avers that the injuries of plaintiff were caused by the negligence of the plaintiff. The specifications of insufficiency of the evidence to justify the verdict were in part as follows: “1st. It clearly appears from the evidence that plaintiff’s injuries were caused by his own carelessness and negligence, and it also clearly appears from the evidence that plaintiff knew that the work of cutting boards by means of a circular rip-saw driven by steam-power was attended with danger. 2d. It clearly appears from the evidence that plaintiff had sufficient means of information to charge him with knowledge of the danger of cutting boards by means of a circular rip-saw driven by steam-power, and that he sustained the injuries complained of through his own carelessness while attempting to perform said work. 3d. It clearly