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Ryan v. Braender Building & Construction Co.

151 N.Y.S. 576 Court N.Y. App. Div. Decision date 1915-01-22 English

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p. 576
RYAN v. BRAENDER BLDG. & CONST. CO.
(Supreme Court, Appellate Division, Second Department.
January 22, 1915.)

Headnote

Evidence (§ 589[1] ) — Sufficiency.
The testimony of an employe on the second trial of his action for a personal injury, inconsistent with his testimony on the first trial, and contrary to the testimony of all other employes engaged in the same line of work, does not support a verdict in his favor.
[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2438; Dec. Dig. § 589.*]
Appeal from Trial Term, Westchester County.
Action by Martin Ryan against the Braender Building & Construction Company. From a judgment for plaintiff, defendant appeals.
Reversed, and new trial granted.
Argued before JENKS, P. J., and THOMAS, STAPLETON, RICH, and PUTNAM, JJ.
Edward J. Redington, of New York City, for appellant.
Sydney A. Syme, of Mt. Vernon, for respondent.

This verdict is against the weight of evidence. The proofs on the first trial showed that in greasing machinery over elevator shafts they waited till the elevator came to the upper floors, where the operator holds his car until the dangerous places had been lubricated. Hence the plaintiff was blamed for consciously departing from this safe and simple system, and greasing the machinery with the car down at the first floor. 154 App. Div. 278 , 138 N. Y. Supp. 862 . On the second trial, plaintiff would make out a different practice ; that while greasing this top machinery the elevator car is kept down at the foot of the shaft, and this in a 20-story building. Such a course would be impracticable and dangerous, where, as here, the shaft was more than 250 feet in depth, with only the* cars in the side shafts to carry the necessary communication to stop and start hoisting. This testimony was inconsistent with plaintiff’s first account, and was against that of all other employes engaged on these elevators. It cannot save plaintiff from the application of our former decision.

Judgment and order reversed, and a new trial granted; costs to abide the event.