Majority
p. 213Fiorenza Zampelli, Appellant, v. The New York City Railway Company, Respondent. Raffaele Zampelli, Appellant, v. The New York City 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 actions against a street railway company, one for personal injuries to the plaintiff alleged to have been sustained by her in boarding one of the defendant’s cars and the other by the plaintiff’s husband against the same company to recover for consequential damages, resulting from the same injury, where the allegations of plaintiff’s complaint are sustained by her testimony, and she is substantially corroborated by the testimony of her sister, and there is nothing inherently improbable in their testimony, and it is unimpeachable save by such inferences as may be drawn from the facts that no report of the accident was ever made to the defendant and that plaintiff made no complaint until ninety-eight days after the accident, and where no witnesses to the accident were called by defendant, a verdict for the defendant in each action was error and the judgment in each action entered thereon should be reversed.
Appeals by the respective plaintiffs from judgments rendered in favor of the defendant in the Municipal Court of the city of New York, third district, borough of Manhattan.
Rosario Maggio, for appellants.
William E. Weaver, for respondent.
These actions were tried together. The first is for personal injuries to the plaintiff, and the second is by the husband for consequential damages alleged to have resulted to him from the injury to bis wife, The jury found
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for defendant in each case, and the plaintiff in each case appeals. The plaintiff wife testified that, when she was attempting to get on- to the car, which was stationary, the conductor rang the hell, the car started up and she was thrown to the ground and injured. Plaintiff’s sister, a witness to the accident, while differing in some unimportant details from plaintiff, substantially corroborated her in all the essential features of the accident. Dr. Pine E. Bush testified to being called shortly after the accident to give medical aid to plaintiff, and states the nature of her injuries, which seem to have been severe. There is nothing inherently improbable in this testimony; and it is absolutely unimpeached, save by such inferences as may be drawn from the fact that no report of the accident was ever made to defendant by its' conductor and motorman, and that plaintiff made no complaint until ninety-eight days after the accident. 3STo witnesses to the accident were called by defendant.
It seems to us that the judgment in each case is against the evidence, and must be reversed.
Judgment in each case reversed and a new trial ordered, with costs to appellants to abide the event.
Seabury and Platzek, JJ., concur.
Judgments reversed and new trial ordered, with costs to appellants to abide event.