Opinion
June, 1907.
Feltenstein Rosenstein (Moses Feltenstein, of counsel), for appellant.
Henry A. Robinson (Bayard H. Ames, of counsel), for respondent.
The substance of the plaintiff's complaint is that, in attempting to board one of defendant's cars at Avenue B and Second street, after the same had come to a standstill, before he had a reasonable opportunity to do so, the car was started and he was thrown to the ground, receiving the injuries complained of. The defendant, having no report of the accident, offered no evidence. The plaintiff's testimony clearly supported the allegations of his complaint, and he was corroborated by one apparently disinterested witness. There was a discrepancy between the testimony of the plaintiff and one of his witnesses as to the part of the car on which the conductor stood when the accident happened; but, as it occurred in November, 1902, and the case was not tried until March, 1907, a lapse of over four years, that fully accounts for defects in the memory of the witnesses, even if such discrepancy was material, which it was not. The jury found for the defendant. A careful examination of the record does not disclose the slightest reason for the verdict rendered. The testimony of the plaintiff and his corroborating witness was fair, unimpeached, uncontradicted and their narration of the occurrence clear and convincing and its truth highly probable. The verdict is against the evidence and unwarranted. This conclusion makes it unnecessary to discuss the alleged error in the judge's charge.
Present: GILDERSLEEVE, SEABURY and PLATZEK, JJ.
Judgment reversed and new trial ordered, with costs to appellant to abide event.