Gibson v. Sterling Furniture Co.

Van Fleet, J. The plaintiff, a lad of eleven years, while in the employment of the defendant in its furniture factory, was set to the task of cleaning the rollers of a sand-papering machine, and, while thus engaged, the machine being at the time in motion, one of his hands was caught by the sand-paper drum, which was revolving at a high rate of speed, and badly lacerated, torn, and otherwise injured to such an extent as to leave plaintiff permanently maimed.' He brought this action to recover for the injury, alleging, in substance, negligence of defendant in putting him at a dangerous task, without knowledge or experience on his part of the dangers incident thereto, and without warning thereof by defendant, or instruction as to how to avoid such dangers.

He recovered a verdict, and defendant appeals from [5]the judgment entered thereon, and from an order denying a new trial.

It is very strenuously urged by defendant that the evidence is insufficient to sustain the verdict. But the record does not support such claim. No motion was made for a nonsuit, nor is it now pretended that there was not evidence on behalf of plaintiff tending, in legal effect, to make out a case, but it is contended that “ the testimony of defendant’s ten witnesses overwhelms in toto that of plaintiff”; and that the preponderance of defendant’s evidence over that of plaintiff made the latter “legally incredible.”

Without reciting the evidence in detail, which would subserve no useful purpose, it is only necessary to say that there is nothing in the essential nature of the evidence as it appears in the record, with the manner and bearing of the witnesses lacking, to disclose any necessary preponderance in favor of defendant; nor is there anything inherently or otherwise so improbable in the character of the evidence on behalf of plaintiff as to render it legally incredible, or which tends to deny it the effect which we think it clearly has of creating a substantial conflict. It is true that defendant’s witnesses greatly exceeded in number those of plaintiff, and there was a very sharp and decided conflict between the two as to the facts; but, however great the disparity, mere preponderance in number of witnesses of itself cannot, of course, control the finding of the jury. Much less can it affect our consideration in determining if the verdict finds support in the evidence. Notwithstanding the disparity in this instance, not only did the jury choose to give credence to the plaintiff’s evidence, but the action of the judge in denying a new trial must, for the purposes of this review, be implicitly regarded as indicating a like view by the latter, since, had his judgment been otherwise, it would have been his duty to grant a new trial. In such a case, under well-settled principles, we would not be justified in saying, even if we regarded the evidence as strongly preponderating in