Bolster v. New York City Railway

113 N.Y.S. 770

Opinion

GIEGERICH, J.

The plaintiff swore positively to the happening of the accident, and the defendant did not call any witness whatever in contradiction. So far as I can recall there were no circumstances indicating that the plaintiff’s testimony was improbable, surprising, or suspicious, and the defendant’s counsel has failed to call attention to any. In such a situation the testimony of the plaintiff should not have been disbelieved. Hull v. Littauer, 162 N. Y. 569, 57 N. E. 102; Littlefield v. Lawrence, 83 App. Div. 327, 82 N. Y. Supp. 25; Kappes v. N. Y. City Ry., 50 Misc. Rep. 534, 99 N. Y. Supp. 322; Lewis v. N. Y. City Ry., 50 Misc. Rep. 535, 99 N. Y. Supp. 462; Johnson v. Doll, 11 Misc. Rep. 345, 348, 32 N. Y. Supp. 132. The verdict of the jury in favor of the defendant must therefore be set aside.

Motion granted, without costs.