Maurer v. Brooklyn Heights Railroad , 96 N.Y.S. 1065 ( 1905 )

Jenks, J.:

I advise a reversal of this judgment and of the order because the . verdict is against the weight or preponderance of evidence. (McDonald v. Metropolitan St. R. Co., 167 N. Y. 66.) The-plaintiff complains, that when a passenger on a car of the defendant’s street surface railroad he signaled to the conductor his wish to leave the car at a corner, that the car.was stopped for him, and that when he had stepped down with one foot on the ground and while the other- was still on the car step "the car was started forward suddenly and violently so that he was. thrown to the ground and iñj ured. Plaintiff testifies .that he rode on the car -as far as Classon avenue: The car turned at a switch at that place and the plaintiff prepared to leave the car there inasmuch as he wished to journey up Flushing avenue. He testifies that the car did not stop before turning into Classon avenue, but afterwards. He called no witnesses to sustain his version, though the defendant admitted that the plaintiff had attempted to find a woman passenger as a witness. The conductor testifies that he stopped the car that tiie motorman might turn the switch; that he then gave the signal to the motorman to go on, and that they were rounding the curve when the plaintiff, without any warning, rushed out to the platform and while the car was in motion attempted'to alight. The conductor’s testimony that the passenger attempted to alight while the car was moving isicorroborated by the testimony of two passengers on the'car. I am not moved to advise a new trial in this case for the sole reason of the absolute contradiction between the plaintiff on the one hand and the conductor and the two passengers on the other. Hulst, the assistant claim agent for the defendant, testifies that the plaintiff subscribed and swore to a written statement immediately after the accident, which was read in evidence. The statement in part is: “ The car went up Flushing avenue to Classon and turned into Classon; I supposed the car would stop when it turned and I was on the step with my heavy grip, weighing about thirty-five or forty pounds, and the car went around the curve fast and didn’t stop at all, and as the car was on the turn I jumped off and the heel of my shoe caught and I was thrown;, the car went about fifty feet before it came to a stop; I was thrown on my knee on the street. 1 have been to see Dr. Fane, of 1080 Halsey Street, who gave me something to rub on my knee. The conductor was standing on the rear platform with his hand on the hell the time I got off; the car was going at the time and the conductor ought to have stopped the car to let me off so I should not be compelled to jump off the car .while it was moving. Mrs. Short, of 203 North Sixth Street, and B. J. Kelleher, of 53 Skillman Street, are my witnesses.”. Here, then, is a sworn statement by the plaintiff in absolute contradiction of the plaintiff as to his theory of his action and his theory of the accidenten the witness stand. For ho once stated under oath that the car did not stop, although the conductor should have stopped it; that he jumped off while the car was in motion and his heel caught, and he sues on the theory that the 'car stopped, but he was not afforded a reasonable time in which to leave the car. On rebuttal he sought to explain the written statement. But he testified that he told the agent that he went out on the platform, told the conductor to stop before he would turn, “ hut he didn’t stop, and he turned around the curve, and as he turned slowly and hind of stopped I stepped off. This is what I told this man that came to my office. I told him in that interview I thought my heel must- have caught, which I didn’t know on account of the jerk around,” etc. Although ho thereafter denies that he said that he wason the step and the car didn’t stop, and he explains that he meant by “kind of stopped ” that it stopped “ for a minute or half a minute, or ten seconds; enough to step off,” the*fact remains in spite of his subsequent refinements and qualifications that he admitted on this trial that he had said to the agent that the car “didú’t stop,” and that as it “turned slowly and kind of stopped I stepped off.” In view of the unsatisfactory and self-contradicting testimony of the plaintiff, unsupported by any other evidence, and also of the testimony directly contradictory, I think that tire plaintiff has not supported his. cause of action by sufficient proof. I, therefore, advise that the judgment and order be reversed and that a new trial be ordered. Hirschberg, P. J.,-Bartlett, Woodward and Rich, JJ., concurred. Judgment and order of the County Court of Kings county reversed and new trial ordered, costs to abide the event."