Staib v. Union Railway Co. — 62 N.Y.S. 755

Majority

p. 755

STAIB v. UNION RY. CO. OF NEW YORK CITY.

(Supreme Court, Appellate Term.

February 23, 1900.)

Headnote

Appeal.

Where, in an action against a street-ear company, defense was supported by testimony of two disinterested witnesses, a judgment for plaintiff will not be held against the weight of evidence where, in addition to her own evidence, she was entitled to the benefit of the presumption arising from failure of defendant to produce its motorman and conductor, who saw the act in question, without sufficient explanation of their absence.

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

p. 756

Action by Hattie B. Staib against the Union Railway Company of New York City. From a judgment for plaintiff, defendant appeals.

Affirmed.

Argued before BEEKMAN, P. J., and G-IEGERICH and O’GORMAN, JJ.

J. Arthur Hilton, for appellant.

Edward A. Scott, for respondent.

We cannot yield to defendant’s contention that the judgment for the plaintiff in this action is against the weight of evidence. Although the defense was supported by the testimony of two apparently disinterested witnesses, the plaintiff, in addition to her own evidence, was entitled to the benefit of the presumption arising from the failure of the defendant to produce its motorman and conductor. It is true, the defendant gave testimony tending to excuse their absence; but, if the motorman was sick, as claimed by the defendant, that was ground for an adjournment, and, even though the conductor was out of the jurisdiction of the court, residing in Nassau county, he might have been examined by commission. The trial justice might well have viewed the explanation respecting the absence of these witnesses as entirely unsatisfactory, and under the circumstances we see no reason for disturbing the conclusion reached below.

Judgment affirmed, with costs.