Hyperlawhypertext legal database Grabenstein v. Metropolitan Street Railway Co. 86 N.Y.S. 727

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Grabenstein v. Metropolitan Street Railway Co.

86 N.Y.S. 727 Court N.Y. App. Term Decision date 1904-02-23 English

Delivered by FREEDMAN, P. J.

Contents

Majority

p. 727
GRABENSTEIN v. METROPOLITAN ST. RY. CO.
(Supreme Court, Appellate Term.
February 23, 1904.)

Headnote

1. Carriers—Street Cab Passenger—Injuries—Contributory Negligence— Evidence.
Evidence in a street car passenger’s action for injuries in alighting held to show contributory negligence in attempting to do so before the car stopped.
Appeal from City Court of New York.
Action by Herman Grabenstein against the Metropolitan Street Railway Company. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals. Reversed.
See 84 N. Y. Supp. 261 .
Argued before FREEDMAN, P. J., and GIEGERICH and McCALL, JJ.
Bayard H. Ames and F. Angelo Gaynor, for appellant.
Droege & Schravrin, for respondent.

Except that the plaintiff supplied the defect in his former testimony as to giving a signal of his intention to alight,

p. 728
and that he changed his testimony as to the side of the street at which the car stopped before he attempted to alight, the evidence remains practically as it stood before; and the fair preponderance, inclusive of probabilities, is not only still to the effect that the plaintiff alighted from the car before it had come to a stop, but it has been rendered even more marked than it was at the former trial by the changes- in the testimony of the plaintiff, and his contradictory statements in other respects.

The judgment and order should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.