47 N.Y.S. 540 | N.Y. App. Div. | 1897
The action was brought to recover damages which the plaintiff ■alleged she suffered by being thrown' from one of the cars of the ■defendant’s railway as she was alighting from it. At the trial she had a verdict, and the defendant’s motion for a new trial, made upon the ground, among others, that the verdict was contrary to the evidence, was denied, and judgment was entered upon the verdict. From the judgment and order this appeal is. taken. ■
It appears that in the month of May, 1894, the plaintiff' was a passenger upon the defendant’s railway. She was riding in an open car up Amsterdam avenue. Just before reaching One Hundred and Fifth street she sought to alight from "the car, and as’ she was •doing so she fell to the ground and received the injuries which she complained of. These facts ■ are not disputed by anybody. The •serious question, however, is whether the car had _ come to a stop before she attempted to alight and was started again while she was in the act of getting off from it, so that she was thrown down, or whether she lost her footing before attempting to ■ alight, while the ■car was in motion, in which case there is no doubt that the defendant would not be liable under the circumstances. . This question was •decided by the jury in favor of the plaintiff, and the most serious •question presented in the case is, whether 'the verdict of the jury was based upon sufficient evidence, or whether there was such a preponderance against it that justice requires that it should be set aside and the case submitted to another jury. The learned justice, •at the Trial Term, denied the motion for a new trial, which was made upon the ground that the verdict was contrary to the evi
The story of the plaintiff in this case was, that the car in which she was riding was an open car. She had not had a seat in it, but was standing between two of the seats which ran across the car. As she approached One Hundred and Fifth street she gave a signal to the conductor to bring the car to a stop that she might alight at
The defendant produced six witnesses who were present and saw the occurrence or some part of it. Three of those witnesses were persons who never in any way, so far as appears, were connected with the defendant, and one of them was the conductor of the car from which the plaintiff fell, but who had since' December, 1895, ■ceased to be in their employ. Each one of these witnesses gives a version of the occurrence which does not in any essential particular vary from the version of any other of them. There are some incidental and immaterial variations, but as to what occurred when the plaintiff attempted to alight, their testimony is substantially the same, with the' exception perhaps that one of the witnesses thinks that the plaintiff, as she stood upon the step of the car, had her pocket book in one hand and' was holding her skirts with the other ; while some of the other witnesses think that she held with one hand the post which-sustains the roof. But this variation, if it be in fact one, is quite immaterial. It may well be that as she stood upon the -step preparing to alight she did hold the post for a time and before she alighted ceased to take hold of it and grasped her skirt to hold it while she stepped off. The variation is not of sufficient importance to throw any discredit upon the testimony of either witness.
The story of these witnesses is, substantially, that the plaintiff was sitting in the. car; that as the car approached One Hundred and Fifth street she rose and gave the signal to tlié conductor that .she wished to alight; that the speed of the car diminished'; that
The appeal from the order denying a new trial must be reversed, and a new trial granted upon condition that the defendant pay to the plaintiff the costs and disbursements of the former- trial. The appellant to have costs of ' this appeal to abide 'the event of the action.
Van Brunt, P. J., Barrett, Williams and Patterson, JJ., concurred.
Order reversed and new trial granted upon condition that' the defendant pay to the. plaintiff the costs and disbursements of the ■ former trial, the appellant' to have costs of this appeal to abide the event of the action.