147 N.Y.S. 453 | N.Y. App. Term. | 1914
Plaintiff was in the employ of defendant as a chambermaid. She alleges that on September 19, 1912, at Morris Plains, N. J., the defendant for no justifiable cause assaulted, struck, and beat the plaintiff in the presence of several other persons; that as a result thereof plaintiff suffered severe shock to her nervous system, suffered pain, etc.
“I am ready to go, but not in the automobile.”
Whereupon defendant called her butler and commanded him to put plaintiff out of the house; that the butler made a grab for plaintiff, but did not touch her, he “just laid his hand on” her arm; where
“So she (meaning defendant) grabbed my hand and called her man in; Nelson, the chauffeur. And Nelson refused to do anything. He said he would have nothing to do with it. The housekeeper still stood there. Then, after that, she said she would call her man to hold me in the car and tie me. I said: ‘Mrs. McAlpin, you have humiliated me; so you are going to hear from me after.’ I got in the front of the car, and when I got out of her premises I got out of the car and walked.”
Plaintiff then went to the house of the mother-in-law of defendant’s chauffeur, and the defendant’s car returned later and took plaintiff to the train, a distance of about three miles from defendant’s house. The chauffeur assisted plaintiff to check her trunk, etc. Plaintiff then went to New York.
This is, in brief, the story of plaintiff, and we think a most improbable one. According to the plaintiff and her counsel, one of the chief reasons for the alleged assault was the refusal of plaintiff to ride in the defendant’s car. The whole case simply discloses an apparent, unappreciated solicitude upon the part of Mrs. McAlpin, the defendant, that plaintiff should not miss her train and should be comfortably conveyed to the station. It is not probable that defendant would assault plaintiff for simply refusing to ride in the automobile. Defendant was not required to transport plaintiff to the train. She would have been justified in putting both plaintiff and her baggage out of the house, upon the lapse of a reasonable time after the contract of employment had ceased, upon plaintiff’s refusal to leave. There is no corroboration of plaintiff’s most improbable story, which is materially weakened by her cross-examination, and all its essential details are flatly contradicted by one wholly disinterested witness, who was present during the whole time from the beginning to the end of the alleged assault, and also by two other witnesses, also disinterested, except that they are in the defendant’s employ. The testimony of these three witnesses is plain, probable, simple, and unshaken in any of its details by cross-examination.
After a most careful reading of the testimony of all the witnesses, we are forced to the conclusion that the verdict is so manifestly contrary to the weight of the evidence that for that reason it should be reversed.
There are other reversible errors in the charge, which it is unnecessary to consider.
Judgment reversed, and new trial ordered, with costs to appellant to abide the event.
PAGE, J., concurs. GUY, J., concurs in result.