191 A.D. 614 | N.Y. App. Div. | 1920
Church street in the city of Elmira extends easterly and westerly and is crossed at right angles by Baldwin street extending northerly and southerly. The plaintiff was riding his motorcycle south on Baldwin street and had stopped or was in the act of stopping at his right curb on the westerly side about twenty feet north of the northerly curb of Church street when the defendant’s automobile driven by himself came up on its wrong side of the street and struck the motorcycle and pushed it with the plaintiff across the sidewalk. For injuries thus received by the plaintiff he brings this action. The explanation of this occurrence is that the defendant while proceeding westerly on Church street and in the act of crossing
The defendant also appeals from an order denying a motion for a new trial on the ground of newly-discovered evidence.
This motion was based on an affidavit of a letter carrier to the effect that he was passing on the sidewalk and saw the occurrence. All that he says in his affidavit is that the defendant was traveling at a moderate rate of speed and that Georgia was coming up rapidly and recklessly. There is no claim that the defendant’s speed was immoderate. He fixed his own rate of speed and he is the only witness who testified on that subject. Neither did any witness testify as to the speed of the Georgia car except as it may be inferred from the defendant’s own
I recommend that the judgment and order denying a new trial on the minutes be affirmed, with costs, and that the order denying a new trial on the ground of newly-discovered evidence be affirmed, without costs. . j
Judgment and order denying a new trial on the minutes unanimously affirmed, with costs, and order denying new trial on the ground of newly-discovered evidence unanimously affirmed, without costs.