Opinion
October, 1899.
Hymes, Woytisek Schaap, for appellant.
Henry A. Robinson, for respondent.
In an action to recover damages for injuries to person and property, alleged to have been caused by the negligence of the defendant, the plaintiff testified that he was a passenger on an uptown Madison avenue car, belonging to the defendant, on April 29, 1899, about eight o'clock in the evening, and told the conductor to stop at Seventy-ninth street, that the car did not stop, and while he was in the act of stepping off, the car rushed forward and he was thrown to the ground and injured, and the picture he was carrying was destroyed. He was corroborated by one Ubenstein, who says that the car had stopped, that while plaintiff was in the act of alighting, the conductor pulled the bell, the car immediately started off, and the plaintiff was thrown to the ground. The defendant did not put a witness on the stand, counsel saying "We have no proof to offer, as we know nothing whatever about this accident." Two weeks later the trial justice rendered judgment in favor of the defendant for ten dollars costs. This was against the evidence. The defendant was bound to allow the plaintiff reasonable time to alight (Poulin v. Broadway Seventh Avenue R.R. Co., 61 N.Y. 621), and where, as in this case, two witnesses are unimpeached, the facts sworn to by them, uncontradicted, either directly or indirectly, by other witnesses, and there is no intrinsic improbability in the relation given by them, neither a court nor jury can, in the exercise of a sound discretion, disregard their testimony. Newton v. Pope, 1 Cow. 109; Kavanagh v. Wilson, 70 N.Y. 177. The judgment should be reversed, and a new trial ordered.
FREEDMAN, P.J., concurs; LEVENTRITT, J., taking no part.
Judgment reversed and new trial ordered, with costs to appellant to abide event.