Bang v. New York & Queens County Railway Co.

128 A.D. 134, 112 N.Y.S. 530, 1908 N.Y. App. Div. LEXIS 397

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 16, 1908
• Status: Published

Opinion

Hooker, J.:

This action is brought to recover damages to plaintiff’s wagon, injured by being run into from behind by defendant’s trolley car. On the former trial the driver, Thomas Speedling,. Jr., testified that just as he was turning on the track he looked back once before he was run into. A recovery was had and an appeal to this court was taken. Mr. Justice Gaynor, speaking for the court, said : “He does not say he looked back before turning, or that he had completed his turn and was going along pn the track before he was run into'. It was for the plaintiff to show these things.” (113 App. Div. 673.) On the second trial this same witness testifies that he looked back four times in his effort to determine whether any car was approaching. This evidence was apparently given to meet the criticism of the court on his former evidence. No satisfactory explanation of this change in evidence is given, and there is no corroboration of him. Examining the facts we do not think his evidence worthy of belief, and hence the plaintiff has failed to sustain the burden of proof. (Edall v. New England R. R. Co., 40 App. Div. 617; Healy v. United Traction Co., 115 id. 868, 870; Fisher v. Central Vermont R. Go., 118 id. 446; Edams v. New York City R. Co., 125 id. 551.)

The judgment should be reversed, with costs.

Woodward, Jenks, Gaynor and Rich, JJ., concurred.

Judgment of the Municipal Court reversed and new-trial ordered, costs to abide the event.