Ormond v. Metropolitan St. Railway Co. — 58 N.Y.S. 335

Majority

p. 335

(27 Misc. Rep. 526.)

ORMOND v. METROPOLITAN ST. RY. CO.

(Supreme Court, Appellate Term.

May 24, 1899.)

Headnote

Street Railroads—Injuries to Passengers—Negligence—Evidence.

In an action for injuries received in alighting from a street car, plaintiff testified that the car suddenly started as she was attempting to take hold of a brass rail on the car to aid her in getting off, thereby throwing her to the ground. The conductor and two disinterested witnesses testified that, while the car was still in motion, plaintiff, though told by the conductor to wait until.it stopped, got off, and was thrown to the ground. Held, that a finding that plaintiff’s injuries were caused by starting the car too soon was against the weight of the evidence.

Appeal from municipal court, borough of Manhattan, Eleventh district.

p. 336

Action by Ettie Ormond against the Metropolitan Street-Bailway Company. There was a judgment for plaintiff, and defendant appeals.

Reversed.

Argued before FREEDMAN, P. J., and MacLEAN and LEVEN-TRITT, JJ.

Henry A. Robinson, for appellant.

Dudley R. Horton, for respondent.

This action was brought to recover damages sustained by the plaintiff, alleged to have been caused by the negligence of the defendant. The only ground upon which a reversal of the judgment is asked for is that it is against the clear weight of evidence. The plaintiff was the only witness sworn in her own behalf, and her testimony is wholly unsupported. She testifies that while a passenger upon one of the defendant’s cars, and when near Twenty-Sixth street, she signaled the conductor to stop the car; that the car stopped; that she had arisen from her seat, and was about to take hold of the brass rail of the car, to aid her in alighting, when the car suddenly started; and that she thereupon' was thrown violently to the ground. This testimony was positively and unequivocally contradicted, not only by the conductor of the car, but also by two disinterested witnesses. The latter testified that they sat in the car, near the plaintiff; that the plaintiff gave the signal to stop the car; that while it was still in motion, and although told by the conductor to wait until the car stopped, she got off before it came to a stop, and by reason thereof w.as thrown to the ground. In view of this testimony, and the probabilities fairly deducible from all the facts and circumstances shown by the record, the judgment should be reversed.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event.

MacLEAN, J., concurring. LEVENTRITT, J., taking no part.