Gruber v. New York City Railway Co.

Gildersleeve, J. The plaintiffs brought these actions to recover for penalties for defendant’s refusal to give transfers to the plaintiffs while passengers upon the defendant’s car. Both cases were tried upon the same day and upon substantially the same testimony, the plaintiffs being brothers and traveling in company at the time the transfers were alleged to have been refused. Each plaintiff testified in his own case and was the only witness sworn in his own behalf. At the close of the testimony in each case, the defendant moved to dismiss the complaint, which was denied; and the defendant offered no testimony but rested, and thereafter the [323] court rendered judgments for the defendant. The plaintiffs claim that these cases come well within the decisions of this court in the Lewis, Kappas and ¡Madden cases, reported in 50 Misc. Rep. 534, 535 and 555, respectively; and plaintiffs ask for a reversal on that ground. We differ with this contention and think that the cases above mentioned are clearly distinguishable from the cases at bar. There is no rule of law more plain or oftener invoked than that which declares that the credibility of a witness is to be determined by those whose duty it is to weigh it, whether it be a court or a jury; and this right is not to be taken away from the trial court, nor curtailed in the slightest degree by an appellate tribunal. In a case where the right to recover rests wholly upon the unsupported testimony of a party whose interest in the result is patent, it is sometimes extremely difficult to determine where the truth lies. In such a case the trial court has the benefit of an observance of the demeanor of a witness and his manner of giving testimony, which is not available to an appellate court; and such observation is often a valuable aid in arriving at the truth of the testimony given. In connection with the observance of the witness and his appearance upon the stand, the court must also take into account the probability of the occurrence narrated by him, and whether it is consistent with the known course of nature, or with the operation of the common principles by which the conduct of mankind is usually governed, and also the consistency, character, independence and situation of the witness and the collateral circumstances which tend to contradict or confirm his statements. Where, as in the Lewis case and the others cited above, the testimony is uncontradicted and falls within the rules there laid down, the court cannot arbitrarily disregard the testimony, even though it be given by a party and is uncorroborated. A different situation, however,, appears in the cases at bar. The plaintiffs testified that they boarded a north-bound Madison avenue car at One Hundred and Sixth street. They made somewhat contradictory statements as to their destination, at first testifying that they were going to a drug store on Eighth avenue and subsequently testifying that they had relatives at 109 [324] West One Hundred and Fourteenth street between Lenox and St. Nicholas avenues whom they were going to visit. They claimed to have ridden to One Hundred and Sixteenth street, waited there for a west-bound car, and that, boarding that, they rode to Eighth avenue, intending to go to One Hundred and Fourteenth street as aforesaid. The court can take judicial notice of the direction and location of the streets and avenues in this city (Skelly v. New York El. R. Co., 7 Misc. Rep. 88; affd., 148 N. Y. 747), and it can readily be seen that, by leaving the Madison avenue car at One Hundred and Fourteenth street, the plaintiffs could have reached the home of their relatives by a walk of but little, if any, over two blocks; while, if their statement is true, they rode northerly ten blpcks, then westerly four blocks, reaching a point from which they must then have walked nearly four blocks in order to reach their destination. In other words, they traveled a distance of eighteen blocks when they could have reached' their destination by going ten blocks only. This statement alone contains evidence of inherent improbability. It is also to be noted that over two years elapsed between the date of the alleged refusal to give transfer and ' the bringing of the "action, and this fact may also be taken into consideration as a factor in arriving at a proper conclusion. Muller v. Vessell, 101 N. Y. Supp. 1064. While, possibly, none of these facts, standing alone, would be of sufficient importance to warrant the conclusion that the plaintiffs’ testimony was not credible, nevertheless, the court below had a right to consider them all; and, taken together, they might well have led the court to disbelieve the plaintiffs’ testimony; and we must hold that, under all the facts and circumstances disclosed by the record, the court was amply justified in giving the judgments rendered by him. Davis and Hendbiok, JJ., concur. Judgments affirmed, with costs.