Citation Numbers： 108 N.Y.S. 509
Filed Date： 2/7/1908
Status： Precedential
Modified Date： 11/12/2024
On August 10, 1904, at half past 3 in the morning, plaintiff was on a wagon which was being driven by one Schwartz-berg through Fourth street, in a westerly direction, towards Third avenue. When the wagon was being driven across Third avenue, it was struck by defendant’s car, and plaintiff received injuries for which she here seeks to recover. At the end of plaintiff’s case the court dismissed the complaint. Plaintiff appeals.
Inasmuch as the complaint was dismissed on plaintiff’s evidence alone, that evidence is entitled, not only to belief, but to all favorable inferences that may reasonably be drawn therefrom. Schwartzberg, the driver, swears he looked on both sides before crossing the track, and saw a car standing at the corner of Third street; that, as he started to cross, the car started up and came on with great force and speed and struck the hind wheel of the wagon, causing the damage complained of. He says on cross-examination that he was not in the employ of plaintiff. His testimony is as follows:
“Mrs. Feingold did not hire my wagon that day. She did not hire me. She did not work for me, but for herself. She had a store. She did not hire me to take her to the market. I took her to the market, and she bought some goods, and she gave me the expressage on the wagon. I took her to the market to get the order she was to give me. I delivered the goods for her. She was sitting inside the wagon. I was driving the wagon.”
There were four people in the wagon, the driver, the plaintiff, one Meyer Schreidman, and one Samuel Schreidman. They all gave the same version of the accident. Only the driver states that “the people in the wagon” wanted him to hurry, and he “did not want to hurry.”
Judgment reversed, and new trial ordered, with costs to appellant to abide the event.