Beethem v. Interurban Street Railway Co.

86 N.Y.S. 1129

Opinion

GREIENBAUM, J.

This case was before this court on a former appeal. 86 N. Y. Supp. 700. The plaintiff’s proofs fall short from showing in what respects the defendant’s motorman was negligent, or that the plaintiff was himself free from negligence. The witnesses called by plaintiff corroborate all the defendant’s witnesses as to the position plaintiff was found in immediately after the accident, indicating that he was struck by the easterly side of the car—a view entirely at variance with the plaintiff’s version that he was working to the west of the southbound tracks when he was struck. The overwhelming evidence in the case as to the position of the plaintiff when struck forcibly impresses one with the improbability of the accident having happened as plaintiff now contends. The judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.