Majority
Headnote
Appeal from Municipal Court, Borough of the Bronx, Second District. Action by Emma Ostrander against the New York City Railway Company. From an order of the New York City Municipal Court setting aside a verdict in favor of plaintiff, she appeals. Reversed, and judgment reinstated. Robert H. Ernest, for appellant. James A. Quackenbush, for respondent.A careful reading of the record discloses no reason why the verdict should have been set aside. There was no motion to dismiss, and no exception to any part of the charge. The learned trial justice seems to have misapprehended the evidence. In his memorandum he states, as illustrating the plaintiff's unreliability as a witness, that she testified that she had never had a doctor before the accident. The minutes show (page 9) that she testified that Dr. Rixe had attended her previous to the accident. In some respects the motorman's evidence is in harmony with plaintiff's evidence, rather than with the conductor's. It does not appear from the order that the verdict was set aside as matter of discretion, and upon the whole case it seems that it should not have been disturbed. The order setting aside the verdict should be reversed, and the judgment reinstated, with costs.
GILDIDRSLEEVE and DOWLING, JJ., concur. DUGRO, J., taking no part.