Shatzman v. New York City Railway Co.

(dissenting). I vote against the reversal of this judgment. The only issue involved was one of fact; and, upon conflicting testimony, the trial justice, who had an opportunity of seeing and hearing the witnesses, rendered judgment for the plaintiff. There’ is nothing improbable in the plaintiff’s testimony and the trial justice had placed upon it the stamp of his approval. Of the four witnesses called by the defendant, two were its employees and interested witnesses. Unless judgments are to be reversed merely because the defeated party calls more witnesses than its opponent, I can see no reason for reversing this judgment.

The judgment appealed from should be affirmed, with costs.

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

This action is for personal injuries, Tht court gave judgment for plaintiff for $125 damages and costs. Defendant appeals. Plaintiff himself and a doctor were the only witnesses for the plaintiff, while four witnesses "were produced by defendant-, two of whom were absolutely disinterested and gave a very clear narrative of the accident, of which they were eye-witnesses. The doctor, above mentioned, was not a witness to the accident and with regard to his testimony the court said: “ I cannot give the doctor’s testimony any serious consideration at all. lie hac *301ao recollection of when, how or where he treated this man.” With regard to the accident plaintiff claims that, while he was in charge as a driver of a single truck, which was standing on the north hound track on Sixth avenue between Twenty-seventh and Twenty-eighth streets, where it had been standing for five minutes, a car ran into his truck, causing him to fall off the truck and receive the injuries of which he complains. Against this uncorroborated version of the accident, defendant’s four witnesses testify that plaintiff was driving in the east roadway; that the truck swung over from such roadway to the north bound track, about ten or twelve fleet ahead of the car, which was going on Sixth avenue between Twenty-seventh and Twenty-eighth streets; that the tnotorman sounded his gong, put on the brake and shouted, bat before he could stop the car the corner of the fender -caught the left wheel of the truck and shoved the truck against one of the elevated railroad columns. It seems to us that a clear preponderance of evidence shows contributory negligence and that the conclusion of the court below -cannot' be sustained. See 110 App. Div. 813; 113 id. 511.

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

Gildersleeve, J. concurs.