Bang v. New York & Queens County Railway Co.

Majority

p. 134

Philip J. Bang, Respondent, v. New York and Queens County Railway Company, Appellant.

Second Department,

October 16, 1908.

Headnote

Railroad — negligence—: collision — change of evidence on new trial — judgment for plaintiff reversed.

Where on a prior trial of an action to recover damages for injury to a wagon caused by a collision with a trolley car, the plaintiff testified that before driving upon the track he looked back once, and a recovery has been reversed because of insufficient proof of care in this respect on his part, and on a second trial he testifies that he looked back four times in an effort to determine whether a car was approaching, his evidence is not worthy of belief, and a judgment in his favor will be reversed.

Appeal by the defendant, the New York and Queens County Railway Company, from a judgment of the Municipal Court of the city of New York, borough of Queéns, in favor of the plaintiff, rendered on the 7th day of February, 1908, after a trial before the court and a jury.

Anthony J. Ernest, for the appellant.

Arthur Van Dewater, for the respondent.

This action is brought to recover damages to plaintiff’s wagon, injured by being run into from behind by defendant’s trolley car. On the former trial the driver, Thomas Speedling,. Jr., testified that just as he was turning on the track he looked back once before he was run into. A recovery was had and an appeal to this court was taken. Mr. Justice Gaynor, speaking for the court, said : “He does not say he looked back before turning, or that he had completed his turn and was going along pn the track before he was run into'. It was for the plaintiff to show these things.” ( 113 App. Div. 673 .) On the second trial this same witness testifies that he looked back four times in his effort to determine whether any car was approaching. This evidence was apparently given to meet the criticism of the court on his former evidence. No satisfactory explanation of this change in evidence is given, and there is no cor

p. 135

roboration of him. Examining the facts we do not think his evidence worthy of belief, and hence the plaintiff has failed to sustain the burden of proof. (Edall v. New England R. R. Co., 40 App. Div. 617 ; Healy v. United Traction Co., 115 id. 868, 870; Fisher v. Central Vermont R. Go., 118 id. 446; Edams v. New York City R. Co., 125 id. 551.)

The judgment should be reversed, with costs.

Woodward, Jenks, Gaynor and Rich, JJ., concurred.

Judgment of the Municipal Court reversed and new-trial ordered, costs to abide the event.