68 N.Y.S. 457 | N.Y. App. Div. | 1901
Lead Opinion
After the verdict in this case the defendant made a motion for a new trial, upon the ground, among others, that the verdict was contrary to the evidence. That motion was denied, and from the order entered thereon the defendant appeals. Upon this appeal, therefore, the question as to whether the verdict is-against the weight of evidence is presented. The plaintiff’s intestate, a passenger upon one of the defendant’s cars, was thrown or feU from the car between Eighteenth and Nineteenth streets, in, the city of New York, on June 26, 1898, and received injuries which resulted in her death. She was riding in an open car that was proceeding downtown. It would appear that she had intended to-alight at Nineteenth street, but the car did not stop at that street, and the accident happened after the car had passed the southerly crossing of Nineteenth street, and before it had reached the northerly crossing of Eighteenth street. The only evidence tending to show that the plaintiff’s intestate was thrown from the car through the negligence of the defendant was the testimony of one William J. Nixon, who at the time of the accident was seated at a window in the fourth story of the building at the southeast corner of Nineteenth street and Second avenue. The accident happened about 10 or half past 10 o’clock in the evening. Nixon testified that he-first noticed the car upon which the plaintiff’s intestate was riding when it was about Twentieth street and Second avenue; that it was coming at a very rapid rate of speed,—from 12 to 15 miles an hour; that he watched the car all the way down the avenue from
The sole ground upon which the jury could find that the defendant was guilty of negligence was that this sudden stopping of the car occurred before the plaintiff’s intestate fell. The plaintiff’s whole case, therefore, depends upon the correctness of Nixon’s tes •timony that the plaintiff’s intestate fell at the time of the jerk of ■the car caused by the quick stoppage of its motion. In considering the credibility of this testimony, we have to consider that the time of the accident was between 10 and half past 10 o’clock at night, about midway between the two electric lights, one on the corner of Eighteenth street and the other on the corner of Nineteenth street, and that Nixon was in the fourth story of the building, from 130 to 150 feet away from the car, at the time of the accident," and was, without any particular reason, closely watching the car. The impression of a witness seeing an accident of this kind, even when testifying in entire good faith as to the transaction, is not always accurate as to the sequence of events occurring within a few sec■onds of time, in a moment of excitement caused by the happening of such an accident. There was no reason suggested for the sudden stoppage of the car between the two streets. The way was perfectly clear; nothing to call for the application of the brake at this particular place. There was no evidence to show that the motor
The defendant called the conductor of the car. He testified that after the car left Nineteenth street the speed of the car was reduced, and that suddenly the plaintiff’s intestate stood up, and then fell off the car; that she had not indicated any request to stop the car, and the witness had not given any signal for that purpose; that immediately after she fell off a passenger of the car rang the bell three times, and in response to these three quick bells the motorman stopped the car right away; and that before the woman fell there was no jerk of the car. The defendant also called three passengers who were upon the car at the time of the accident. They were apparently disinterested witnesses, and corroborated the testimony of the conductor. They testified that the plaintiff’s intestate was seated in the car; that she arose from her seat, and immediately afterwards fell off the car; that when she fell there was no jerk or sudden stoppage of the car; and that it was immediately after her fall that the car suddenly stopped. These passengers were all in a position to see the occurrence just as it happened. The defendant also called a policeman, who was riding a bicycle. He testified that he was about five or six feet from the car at the time of the accident; that when he first observed the car he was riding north on the right-hand side of the avenue, and he made up his mind to change, and go south to the lower portion of his post; that he waited for the car to pass, and then passed around behind the car, to come in the car track; that he followed the car, about 6 or 8 feet behind it, until it was within 60 or 70 feet of Eighteenth street, when he saw a woman stand up and fall out of the car; and that there had been no stoppage-of the car before she fell. The witness’ post was on Second avenue, from Houston to Twentieth street. He was then engaged in covering his post, having come from the southerly portion of it to the northerly. He noticed the woman stand up, and immediately after fall out sideways. The defendant also called the motorman, who testified that, as he was going between
It follows that the judgment and order must be reversed, and a new trial ordered, with costs to the appellant to abide the event.
VAN BRUNT, P. J., and HATCH, J., concur.
Dissenting Opinion
We think there was a plain question for the jury, which was properly decided by them. We therefore dissent.
