142 N.Y.S. 1125 | N.Y. App. Div. | 1913
Judgment and order reversed and new trial granted, costs to abide the event. On the issue of warning signals from defendant’s train the outside testimony of a large number of disinterested witnesses supports the affirmative evidence of the engineer and fireman. There was no substantial issue raised by negative testimony from observers in a position to hear and see, and who were attentive to the train’s approach. Plaintiff’s testimony was, therefore, overborne by that of defendant upon the vital issue of defendant’s signals and the want of care by plaintiff’s testator in driving his motor car upon the crossing in front of the train. Hence the motion to set aside the verdict, as against the weight of evidence, should have been granted. Jenks, P. J., Carr, Rich, Stapleton and Putnam, JJ., concurred.
