Majority
p. 473(29 Misc. Rep. 332.) WEISS v. METROPOLITAN ST. RY. CO. (Supreme Court, Appellate Term. October 25, 1899.) Argued before FREEDMAN, P. J., and MacLEAN and LEVEN-TRITT, JJ.
Headnote
1. Street Railroads—Injuries to Passengers.A street-railway company is liable for injuries to a passenger occasioned by the negligence of a conductor in pulling the bell, causing the car to start while the passenger is alighting.
2. Appeal—Municipal Courts—Disregard op Evidence.
A judgment obtained by a disregard of the uncontradicted testimony of two unimpeached witnesses, concerning a matter of which there is no intrinsic improbability, will not be sustained.
Appeal from municipal court, borough of Manhattan, Second district.
Action by Joseph Weiss against the Metropolitan Street-Railway Company. Judgment for defendant, and plaintiff appeals.
Reversed.
Hymes, Woytisek & Schaap, for appellant.
Henry A. Robinson, for respondent.
In an action to recover damages for injuries to person and property, alleged to have been caused by the negligence of the defendant, the plaintiff testified that he was a passenger on
p. 474
an uptown Madison avenue, car, belonging to the defendant, on April 29, 1899, about 8 o’clock in the evening, and ¡told the conductor to stop at Seventy-Ninth street; that the car did stop, and, while he was in the act of stepping off, the car rushed forward) and he was thrown to the ground and injured, and the picture he was carrying was destroyed. He was corroborated by one Ubenstein, who says that the car had stopped; that, while plaintiff was in the act of alighting, the conductor pulled the bell, the car immediately started off, and the plaintiff was thrown to the ground. The defendant did not put a witness on the stand, counsel saying: “We have no proof to offer, as we know nothing whatever about this accident.” Two wrecks later the trial justice rendered judgment in favor of the defendant for $10 costs. This was against the evidence. The defendant was bound to allow the plaintiff reasonable time to alight (Poulin v. Railroad Co., 61 N. Y. 621 ); and where, as in this case, two witnesses are unimpeached, the facts sworn to by them uncontradi'cted, either directly or indirectly, by other witnesses, and there is no in-, trinsic improbability in the relation given by them, neither a court nor jury can, in the exercise of a sound discretion, disregard their testimony (Newton v. Pope, 1 Cow. 109 ; Kavanagh v. Wilson, 70 N. Y. 177 ). The judgment should be reversed, and a new trial ordered.
Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event.
FREEDMAN, P. J., concurs. LEVENTRITT, J., takes no part.
Cases cited
- Poulin v. Broadway & Seventh Avenue Railroad 61 N. Y. 621 p. 474
- Newton v. Pope 1 Cow. 109 p. 474
- Kavanagh v. Wilson 70 N. Y. 177 p. 474