Surkin v. Interborough Street Railway Co.

Bischoff, J. The action brought by Rebecca Surkin is for damages for personal injuries claimed to have been sus [408] tained through the negligence of the defendant in causing one of its ears to start while she, an intending passenger, was attempting to hoard it. The cause was submitted to a jury upon the evidence produced by the plaintiff, no evidence having been offered for the defendant, and the justice set aside the verdict. The action brought by Charles Surkin is for consequential damages arising from the injury to his wife Rebecca through the same accident. The latter action was tried, by stipulation, upon the same evidence and submitted to the justice for his.decision, without a jury, the submission having resulted in the justice’s conclusion in favor of the defendant. The evidence given by the plaintiff consisted of her testimony and the testimony of her witness, Hiss Handel, who was with her at the time she attempted to board the car. According to the plaintiff, the accident appears to have happened on the uptown side of Thirtieth street and Eighth avenue, while Hiss Handel places the occurrence at the downtown side, and there is no proof that any signal was given by either of these persons to the defendant’s servants upon the car or that the car came to a standstill under any circumstances such as would necessarily suggest to the defendant’s employees, that the plaintiff intended to take passage. The credibility of the plaintiff was also affected by the inconsistency between her statement that she was in bed for two weeks after the accident, and'her assertion that she had signed the complaint nine days after the'accident at her lawyer’s office, and while the unsatisfactory character of her testimony might, in part, have been explained by her imperfect understanding of English, her demeanor upon the stand afforded a valuable criterion as to whether or not this was a sufficient explanation. With the record in this condition we cannot hold that there was an abuse of discretion in the justice’s ruling that the verdict was against the weight of the evidence, and his peculiar advantages in observing the witnesses upon the stand should be given great weight upon a review of his exercise of discretion in ordering a new trial. Silverman v. Dry Dock, E., B. & B. R R. Co., 69 App. Div. 22. [409] In the action brought by Charles Surkin, which resulted in a judgment for the defendant upon this evidence, it cannot be held that the justice’s conclusion was against the weight of the evidence, since in a view of the proof which the justice was quite authorized to adopt, there was no satisfactory exposition of the fact that the defendant was negligent in causing the car to start while the plaintiff was boarding it, notice of her intention to become a passenger at this point not being brought home to the defendant, either directly or as matter of necessary inference. The order and judgment appealed from should, therefore, be respectively affirmed, with costs. Freedman, P. J., and Fitzgerald, J., concur. Order and judgment affirmed, with costs.