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Bang v. New York & Queens County Railway Co.

112 N.Y.S. 530 Court N.Y. App. Div. Decision date 1908-10-16 English

Delivered by HOOKER, J.

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p. 530
BANG v. NEW YORK & Q. C. RY. CO.
(128 App. Div. 134.)
(Supreme Court, Appellate Division, Second Department.]
October 16, 1908.)

Headnote

Street Railroads—Collision with Vehicles—Evidence—Sufficiency.
Where, on the first trial of an action against a street railway for damages from a collision with plaintiff’s wagon, plaintiff testified that as he was turning on the track he looked back once before he was run into, hut on a second trial testified that he looked back four times to determine whether- any car was approaching, and no satisfactory explanation of such change in evidence was given, a judgment in his favor was unauthorized.
Appeal .from Municipal Court, Borough of Queens, Second District.
Action by Philip J. Bang against the New York & Queens County Railway Company. Judgment for plaintiff, and defendant appeals.
Reversed.
For prior report,, see 113 App. Div. 673 , 99 N. Y. Supp. 946 .
Argued before WOODWARD, JENKS, HOOKER, GAYNOR, and RICH;' JJ.
Anthony J.- Ernest, for appellant.
Arthur Van Dewater, for 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 on the track before he was run into. It was for the plaintiff to show these things.” 113 App. Div. 673 , 99 N. Y. Supp. 946 .
p. 531
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 corroboration 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 , 57 N. Y. Supp. 914 ; Healy v. United Traction Co., 115 App. Div. 868 -870, 101 N. Y. Supp. 331 ; Fisher v. Central Vermont Ry. Co., 118 App. Div. 446 , 103 N. Y. Supp. 513 ; Adams v. N. Y. C. Ry. Co., 125 App. Div. 551 , 109 N. Y. Supp. 1019 .

The judgment should be reversed, with costs. All concur.

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