Ormond v. Metropolitan Street Railway Co. , 58 N.Y.S. 335 ( 1899 )

Freedman, P. J.

This action was brought to recover damages sustained by the plaintiff, alleged to have been caused by the negligence of the defendant.

The only ground upon which a reversal of the .judgment- is asked for is that it is against the clear weight., of. evidence. The plaintiff was the only witness sworn in her .own behalf, and her testimony is wholly unsupported. She testifies that while a passen- ■ ger upon one' of the- defendant’s cars, and when near Twenty-sixth street, she signalled the conductor to stop the car; that the car stopped; that she caught hold of the brass rail of the car to aid her in alighting, when the car suddenly started, and that she there■upon was thrown violently to the ground.

This testimony was positively and unequivocally contradicted not only by the conductor of the car, but also by two disinterested witnesses. The latter testified that they sat in the car near the plaintiff; that the plaintiff gave the signal to stop the car; that while it was still in motion, and although told by the conductor to wait until the car stopped, she got off before it came to a stop, and by reason thereof was thrown to the ground. In view of this testimony, and the probabilities fairly deducible from all the facts and circumstances shown by the record, the judgment should be reversed.

MacLean, ¿7., concurring; Leventeitt, J.,- taping no part.

Judgment reversed, new trial ordered, with costs to appellant to abide event.