Klein v. Interurban Street Railway Co. — 55 Misc. 211

Majority

p. 211

Adolph Klein, Appellant, v. The Interurban Street Railway Company, Respondent.

(Supreme Court, Appellate Term,

June, 1907.)

Headnote

Carriers — Carriage of passengers — Liability for personal injuries to passengers — Actions by passengers for personal injuries — Sufficiency of evidence.

New trial—Grounds — Verdict or findings contrary to law or evidence — Verdict contrary to evidence — Credibility of witnesses.

In an action against a street railway company for injuries alleged to have been sustained by plaintiff in attempting to board one of defendant’s cars which, after having come to a standstill and before plaintiff had a reasonable opportunity to board it, was started, in consequence whereof plaintiff was thrown to the ground, receiving the injuries complained of, where the plaintiff’s case was supported by his own testimony and he was corroborated by one apparently disinterested witness, and the testimony of the plaintiff and his corroborating witness was fair, unimpeaehed and uncontradicted and their narration of the occurrence was clear and convincing, and the defendant offered no evidence, a verdict for the defendant was error, although there was a discrepancy between the testimony of the plaintiff and one of his witnesses as to the part of the car on which the conductor stood when the accident happened, which occurred over four years before the trial.

p. 212

Appeal by plaintiff from a judgment of the City Court of the city of New York, entered in favor of the defendant upon the verdict of a jury and also from an order denying a motion for a new trial.

Feltenstein & Rosenstein (Moses Keltenstein, of counsel), for appellant.

Henry A. Robinson (Bayard H. Ames, of counsel), for respondent.

The substance of the plaintiff’s complaint is that, in attempting to board one of defendant’s ears at Avenue B and Second street, after the same had come to a standstill, before he had a reasonable opportunity to do so, the car was started and he was thrown to the ground, receiving the injuries complained of. The defendant, having no report of the accident, offered no evidence. The plaintiff’s testimony clearly supported the allegations of his complaint, and he was corroborated by one apparently disinterested witness. There was a discrepancy between the testimony of the plaintiff and one of his witnesses as to the part of the car on which the conductor stood when the accident happened; but, as it occurred in November, 1902, and the case was not tried until March, 1907, a lapse of over four years, that fully accounts for defects in the memory of the witnesses, even if such discrepancy was material, which it was not. The jury found for the defendant. A careful examination of the record does not disclose the slightest reason for the verdict rendered. The testimony of the plaintiff and his corroborating witness was fair, unimpeached, uneontradicted and their narration of the occurrence clear and convincing and its truth highly probable. The verdict is against the evidence and unwarranted. This conclusion makes it unnecessary to discuss the alleged error in the judge’s charge.

Present: Gildeesleeve, SeabuRy and Platzek, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.