Yocum v. Interborough Rapid Transit Co.

Per Curiam.

In this action to recover damages because of injuries received through the alleged negligence of the defendant, the testimony of plaintiff discloses the fact that he did not know what caused the accident.

The defendant proved that on at least five or six separate occasions the plaintiff gave a different version of the cause and filed a sworn statement with the /Etna Life Insurance Company, in which he stated, “ While riding in Interborough subway struck in eye by splinter of steel both eyes totally disabled.”

In giving the history of his case to one of the doctors who had attended him, he stated that he was struck in the eye by what he thought was a piece of cement. To another doctor he had stated that he was riding in a subway train and something blew in the window and struck him in the eye. These are but a few of the admissions alleged to have been made by plaintiff and which were proved by the defendant upon the trial.

The plaintiff stated that there was a witness to the accident who had given him his card, had written him a letter and had called to see him. He was unable to give the name of the witness and states that he had lost the card and the letter, and had not told his attorney or any one about this witness until shortly before the trial.

We have concluded that the evidence indicates that the plaintiff did not know how the accident occurred, or its cause, and that the verdict is against the overwhelming weight of the credible evidence.

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Present — Dowling, P. J., Merrell, Martin, O’Malley and Proskauer, JJ.

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