Maloney v. Metropolitan Street Railway Co.

Hatch, J.: The plaintiff testified that she boarded one of the defendant’s east-bound crosstown cars on Thirty-fourth street opposite the entrance of the Waldorf-Astoria Hotel; that she transferred to a north-bound Lexington avenue car and told the conductor when he took up her transfer ticket that she wanted to get off at Forty-fourth street.' The car ' did not stop, however, at Forty-fourth street, and she did not notice that she had passed the place until her attention was called to it by a lady sitting next to her, when she signaled the conductor'to stop the car. The car was stopped at the north corner of Forty-sixth street, and as she stepped down onto the running board to alight the conductor said to her “ get off quick,” and he pulled the strap before she had time to alight, the car started and threw her to the pavement, cutting and otherwise bruising and rendering her unconscious. Plaintiff produced no other witness besides herself to testify as to how the accident occurred. The defense produced two witnesses .who claimed to have seen the accident, one a lawyer who was sitting on the front porch of a house opposite where the accident occurred, and the other a policeman, who was patroling his beat. The block between Forty-sixth and ' Forty-seventh streets is 200 feet in length, and the witness Hopkins resided at 491 Lexington avenue, which was about midway in the block. He testified that he was sitting upon the stoop of this house; that he heard a scream, and looking up saw a woman in the act of falling from a moving car, and that she fell to the street about opposite the next house. After she had fallen Dr. Duncan, who had an office in No. 493, came out, and the plaintiff was assisted to his stoopthat witness got a glass of vichy for the woman and she remained there until the ambulance came and took her away; that before leaving a policeman came, to whom the plaintiff gave her name. The policeman testified that on the night in question he was at Forty-sixth street when he saw the plaintiff “ walk off the car in the middle of the block above. The car was moving north at the regular rate of speed.” He immediately went to the place and assisted a citizen in removing her to a stoop, which the witness thought was 491; that a doctor came, who had an office close by. In the meantime the witness [395] obtained from plaintiff her name, age, occupation, where she was born and where she lived; that she answered all the questions and was not unconscious at any time while he saw her; that he sent a telephone call for an ambulance, which came and took her away. The conductor had left the employ of the defendant, and it was proved upon the trial that efforts to find him for the purpose of calling him as a witness were unavailing and that his whereabouts could not be located. The plaintiff admitted that she was taken upon the stoop of' a house below Forty-sixth street, where she claimed she was attended by a priest, when she fainted away and woke in the Flower Hospital. The witness Hopkins testified that he saw no priest present while the plaintiff was upon the' stoop. In several other respects plaintiff was contradicted in her story. We are of opinion that this judgment should be reversed for the reason that the verdict upon which'it is based is against the preponderance of credible testimony. The plaintiff is deeply interested in the result. The witnesses called for the defendant are of character and standing and have no interest whatever in connection with this transaction. The story which they tell agrees exactly with the conceded facts, and there is nothing aside from the unsupported statement of the plaintiff which in the slightest degree tends to destroy the force of such testimony. We, therefore, conclude that the plaintiff has not successfully borne the burden placed upon her of establishing by fair preponderance of evidence the elements of the cause of action which she was required to establish, and under such circumstances this court has not hesitated to set the judgment aside as against the fair weight of the evidence. (Schroder v. Met. Street Ry. Co., 87 App. Div. 624; Clancy v. Yonkers R. R. Co., 88 id. 612.) ' The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event. Patterson, Ingraham and McLaughlin, JJ., concurred; O’Brien, J., dissented.