Howley v. Brooklyn & Queens Transit Corp. ( 1941 )

Action to recover damages for personal injuries sustained by plaintiff’s intestate allegedly as the result of the negligence of the defendant in the operation of a trolley ear by reason of which [original] plaintiff was struck by the ear. Upon the death of the original plaintiff after trial and entry of judgment the administratrix was substituted. Judgment for [original] plaintiff reversed on the facts and new trial granted, with costs to appellant to abide the event. The verdict was against the weight of the credible evidence. The testimony of the original plaintiff as to boarding the trolley car at Jay street and Myrtle avenue, Brooklyn, was refuted, not only by the testimony of the motorman, but by impressive documentary proof that at no time during the trip in which the accident occurred was the particular car closer to the place where the original plaintiff claimed to have boarded it than three miles. This proof is particularly significant in the light of the fact that the first intimation of a claim by [original] plaintiff that he was a passenger on the car was at the trial. The claim of the original plaintiff that the car traveled a distance of only one to one and a half feet from standstill to impact, rendering him immediately unconscious and causing fracture of his skull and inability to state what part of his body the ear hit, borders on the incredible. The testimony of the only witness in corroboration of the [original] plaintiff as to the happening of the accident was refuted by the operator of the automobile in which he allegedly was riding when he saw the accident. Lazansky, P. J., Hagarty, Johnston and Taylor, JJ., concur; Close, J., concurs in result.