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Etshells v. Fargo

144 N.Y.S. 1069 Court N.Y. App. Div. Decision date 1913-12-31 English

Delivered by *1070 SCOTT, J.

Contents

Majority

p. 1069
ETSHELLS v. FARGO.
(Supreme Court, Appellate Division, First Department.
December 31, 1913.)

Headnote

Appeal and Error (§ 1003[1] )—Review—Finding.
Where a finding in favor of plaintiff, on an issue of fact, was against the overwhelming weight of the evidence, it will be reversed.
[Ed. Note.—For other cases, see Appeal and Error, Cent Dig. §§'3938-3943 ; Dec. Dig. § 1003.*]
Ingraham, P. J., and Hotchkiss, J., dissenting.
Appeal from Trial Term, New York County.
Action by Harry Etshells against James F. Fargo, as Treasurer of the American Express Company. From a judgment for plaintiff, and an order denying his motion for new trial, defendant appeals.
Reversed and remanded.
Argued before INGRAHAM, P. J., and CLARKE, SCOTT, DOW-LING, and HOTCHKISS, JJ.
John G. Milburn, Jr., of New York City, for appellant.
Jeremiah A. O’Leary, of New York City, for respondent.

The question of defendant’s liability turns upon whether or not plaintiff had stepped onto the roadway before he was struck by defendant’s vehicle. "Upon this question, the weight of the evidence is overwhelmingly in favor of the defendant. Plaintiff’s testimony that he had not stepped off the curb is not supported by any other witness, while he is contradicted by a number of witnesses, some of whom at least appear to be wholly disinterested and worthy of belief.

The judgment and order appealed from must therefore be reversed and a new trial granted, with costs to appellant to abide the event.

CLARKE and DOWLING, JJ., concur. INGRAHAM, P. J., and HOTCHKISS, J., dissent.