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Orchard Stables v. Interurban Street Railway Co.

91 N.Y.S. 330 Court N.Y. App. Term Decision date 1904-12-23 English

Delivered by MacEEAN, J.

Contents

Majority

p. 330
ORCHARD STABLES v. INTERURBAN ST. RY. CO.
(Supreme Court, Appellate Term.
December 23, 1904.)

Headnote

1. Street Railroads—Collision with Vehicle—Negligence—Sufficiency of Evidence.
In an action by the owner of a vehicle against a street car company for damages from a collision, where the version of defendant’s motorman, that the negligence of plaintiff’s driver caused the accident, was directly supported by three disinterested witnesses, and the direct testimony of plaintiff’s driver varied from that on cross-examination, with but slight support by one disinterested witness, a verdict for plaintiff is against the weight of evidence.
Appeal from City Court of New York.
Action by the Orchard Stables against the Interurban Street Railway Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.
Reversed.
Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.
Bayard H. Ames and F. A. Gaynor, for appellant.
Joseph I. Erenstoft, for respondent.

The plaintiff sought recovery for injury to a hearse resulting from collision with a car of the defendant on Sixth avenue between Forty-First and Forty-Second streets. The version of the accident by the motorman of the defendant, strongly supported by the testimony of three disinterested witnesses, unimpeached—differing only and mainly in the number of feet—that the driver of the plaintiff suddenly cut diagonally across the path of the car of the defendant, with the scant allowance of from 10 to 25 feet, so completely negatives the version of the plaintiff, by its driver, who testified varyingly on direct and cross, with slight support from one, and practically no support from the other, disinterested witness, that the plaintiff may not be said to have borne its burden of a preponderance of proof. The verdict of the jury was manifestly against the weight of evidence, and therefore the judgment entered thereon must be reversed, and a new trial ordered.

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