Majority
p. 375KOESTER v. INTERURBAN ST. RY. CO. (Supreme Court, Appellate Term. November 10, 1904.) Argued before FREEDMAN, P. J„ and BISCHOFF and FITZGERALD, JJ.
Headnote
1. Street Railroads—Injury to Passenger—Evidence.In an action for injuries received while plaintiff was boarding defendant’s street car, evidence held insufficient to support a finding that the car was not in motion.
Appeal from City Court of New York, Trial Term.
Action by Joseph Koester against the Interurban Street Railway Company. From a for and from an order ing a motion for a new trial, defendant appeals.
Reversed.
Bayard H. Ames and F. Angelo Gaynor, for appellant.
Alfred & Charles Steckler, for respondent.
Plaintiff’s theory, upon which he succeeded, was that defendant’s car was at a standstill at the time he attempted to board it. In this he remained wholly uncorroborated. Upon this point he was contradicted by four witnesses, two of
p. 376
whom have no interest in the result of the action, and from whose testimony it appeared that at the time the car was in such rapid motion that plaintiff’s attempt to board it was dangerous. Admittedly the accident occurred in or about the middle of the block, and this strengthens defendant’s case upon the question of probabilities. In my opinion, the evidence preponderates so much in favor - of defendant’s theory that in the interest of justice a new trial should be ordered.
Judgment and order appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.