Manning v. Metropolitan Street Railway Co. — 85 N.Y.S. 1122

Majority

p. 1122

MANNING v. METROPOLITAN ST. RY. CO.

(Supreme Court, Appellate Term.

January 7, 1904.)

Headnote

1. Street Railways—Injuries to Passengers—Verdict against Evidence-Setting Aside.

In an action against a street railway for personal injuries, where plaintiff, a passenger, is wholly uncorroborated, and is contradicted in all essential particulars by the overwhelming testimony of a number of disinterested witnesses, who give a consistent and not improbable version of the accident, a verdict for plaintiff must be set aside as against the weight of evidence.

Appeal from City Court of New York, Trial Term.

Action by Bridget Manning against the Metropolitan Street Railway Company. From a judgment for plaintiff and an order denying motion for new trial, defendant appeals.

Reversed.

Argued before FREEDMAN, P. J., and G1EDERSEEEVE and GREENBAUM, JJ.

Henry A. Robinson (Bayard H. Ames and F. A. Gaynor, of counsel), for appellant.

M. P. O’Connor (J. Brownson Ker, of counsel), for respondent.

Upon the trial of this action for damages for personal injuries the plaintiff testified that when the car upon which she was a passenger approached Ninety-Fifth street and Lexington avenue she notified the gripman to stop the car; that thereupon the car was brought to a standstill at the corner; and that while she'was in the act of alighting it was suddenly started, with the result that she was thrown to the ground and injured. The plaintiff was the only witness in her own behalf as to the occurrence, and was entirely uncorroborated. The defendant, on the other hand, produced five witnesses—the ■ gripman, conductor, a policeman,, a pedestrian, and a passenger on the car—three of whom were apparently wholly disinterested, who testified that the plaintiff alighted while the car was in motion, and that she fell or was thrown down at a point considerably north of Ninety-Fifth street, and about the middle of the block between Ninety-Fifth and Ninety-Sixth streets. The plaintiff was thus contradicted upon two vital points by all the witnesses of the defendant. Under these circumstances, where the plaintiff, an interested witness, and wholly uncorroborated, is contradicted in all essential particulars by the overwhelming testimony of a number of disinterested witnesses, who among themselves give a consistent, uncontradictory, and not improbable version of the accident, the verdict must be set aside as against the weight of evidence.

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