Wichman v. New York Consolidated Railroad — 178 A.D. 922

Majority

p. 922

Second Department,

May, 1917.

Fredericka Wichman, Respondent, v. New York Consolidated Railroad Company, Appellant.

Headnote

Railroad — negligence—fall on stair.

Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Bangs on the 18th day of October, 1916, in favor of the plaintiff.

The contention that the plaintiff fell in consequence of defects in the stairway, rests almost altogether upon the testimony of her daughter, who admits that she did not ascribe the fall to such defects until

p. 923

the day after the accident, when she returned to view the stairs. Moreover, she arrives at the cause of the fall by a process of exclusion. The daughter is flatly contradicted by nine witnesses, of whom almost all looked at the stairway immediately after the accident, for the purpose of discovering any defects therein. Of these nine, one was a disinterested passenger who was following the plaintiff in her descent, another was an employee of the department of bridges, and three were members of the police force, who gave official attention to the accident. The other witnesses were employees of the defendant, but one of them had left such employment before the trial. There is nothing that indicates that any witness called by the defendant was a deliberate falsifier. So far as the employees are concerned, while their relations to the defendant could have been considered properly by the jury in weighing the testimony, it must be remembered that these employees were corroborated by the apparently disinterested witnesses called by the defendant. We think that the verdict is against the weight of the evidence, and that, therefore, there should be a new trial. Stapleton, Mills, Putnam and Blaekmar, JJ., concurred. Judgment reversed and new trial granted, costs to abide the event.