Hill v. Brooklyn Heights Railroad — 138 N.Y.S. 106

Majority

p. 106

HILL v. BROOKLYN HEIGHTS R. CO.

(Supreme Court, Appellate Term, Second Department.

May 29, 1912.)

Headnote

Carriers (§ 318*)—Actions for Injuries—Sufficiency of Evidence—Negligence.

Evidence in an action against a street railroad tor personal injuries, alleged to have been caused by the sudden starting of the car while plaintiff was getting off, held not sufficient to sustain a judgment for plaintiff.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1270, 1307-1314; Dec. Dig. § 318.*]

«For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes

Appeal from Municipal Court, Borough of Brooklyn, Fifth District.

Action by William J. Hill against the Brooklyn Heights Railroad Company. From a judgment for plaintiff, who claimed a sudden start of a car while he was getting off, defendant appeals. Reversed, and complaint dismissed.

Argued May term, 1912, before KELLY, JAYCOX, and CLARK, JJ.

George D. Yeomans, of Brooklyn, for appellant.

While we hesitate to reverse a judgment depending upon the credibility of witnesses who have testified before the justice in the court below, still in this case the plaintiff’s testimony is very unsatisfactory. He does not say that he was thrown by the starting of the car. Indeed, his testimony is consistent with the testimony of the conductor, his assistant, and the two outside witnesses, that plaintiff, standing on the step while the car was in motion, fell to the ground. Plaintiff says on his direct examination, “the car made a start and I tumbled out on my two knees,” and on cross-examination, “I put my right foot down, and I tumbled; that is the last I knew.” He is the only witness to the accident called in his behalf, and he is contradicted by all the other witnesses, employés and outsiders. The judgment should be reversed, and the complaint dismissed.

Judgment reversed, with costs, and complaint dismissed, with costs.