Majority
p. 946BANG v. NEW YORK & Q. C. RY. CO. (Supreme Court, Appellate Division, Second Department. June 15, 1906.) Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, GAYNOR, and RICH, JJ.
Headnote
Street Railroads—Collision With "Vehicles—Evidence—Sufficiency.In an action against a street railroad company for damages caused by a collision between defendant’s car and plaintiff’s wagon as it was being driven along the car track, evidence held insufficient to support a verdict for plaintiff.
Woodward and Rich, JJ., dissenting.
Appeal from Municipal Court of New York.
Action by Philip J. Bang against the New York & Queens County Railway Company. From a judgment for plaintiff, defendant appeals»
Reversed.
Van Vechten Veeder and John Hetherington, for appellant.
A. Van Dewater, for respondent.
This verdict has no foundation to rest on. The driver of the plaintiff’s wagon was driving along beside the defendant’s electric car track in a broad highway of a dark night. His entire
p. 947
evidence in chief is that as the road was slippery he turned into the car track and a car came up in the rear and ran into the wagon. He was the only witness of the occurrence called by the plaintiff. He does not say he looked back before turning, or that he had completed his turn and was going along on the track before he was run into. It was for the plaintiff to show these things. It can scarcely be necessary to say that if a driver turn into an electric car track so close in front of a car coming up behind him as to bring on a collision, there can be no recovery against the railroad company for the damage done. It is his business to look before turning and not to turn if a car be too close. The cross-examiner for the defendant did all he could to supply the deficiencies and make out a case for the plaintiff. He drew from the witness with much pains and difficulty that he looked before turning and saw no car, and also that he had at least completed the turn and got straightened out along the track before the collision. The plaintiff’s counsel then asked the witness the leading question if he had not gone along on the track “quite a distance” before the collision, and got an affirmative answer. But it was not permissible for the jury to interpret that indefinite phrase to me,an any definite distance. The witness might have meant a foot, and the evidence was worthless. The car was lighted by electricity and if the driver had looked he could not have failed to see it. He either saw it or did not look. In either case the plaintiff cannot recover.
And if the weight of evidence had to be considered the verdict is clearly against it.
The judgment should be reversed.
Judgment of the Municipal Court reversed, and new trial ordered; costs to abide the event. All concur, except WOODWARD and RICH, JJ., dissenting.