City of New York v. New York City Railway Co. , 107 N.Y.S. 748 ( 1907 )

McCALL, J.

Aside from the question of freedom from contributory negligence, which would bother us very much if it were the only question in the case, we believe that the verdict is absolutely against the weight of evidence. In fact, upon the proof offered, we believe the trial justice should have dismissed the complaint. Against the unequivocal and positive testimony of the president of the Manhattanville & Forty-Second Street Railway Company that the car No. 3,054. (which was the one which collided with plaintiff’s automobile) was on that day owned and operated by his road, and that it was not under the control of the defendant or operated by its servants, it would seem inexplicable how a jury could find to the contrary, merely because the evidence showed that the signs on the car bore the names “Broadway and Metropolitan,” and this, too, in the face of Mr. Beaver’s testimony that they sometimes leased these very cars to operate them over his road. The judgment should be reversed.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.