Chiavarelli v. New York Central & Hudson River Railroad

Appellate Terms of the Supreme Court of New York

Chiavarelli v. New York Central & Hudson River Railroad

88 N.Y.S. 869

Appellate Terms of the Supreme Court of New York·Decided June 23, 1904·Published

Opinion

SCOTT, J.

If any regard is to be given to the weight of evidence, this judgment must be reversed. The plaintiff swore positively that he was in the last car of the train when he was injured. It was conclusively proven that he was not in that car. With the testimony in that condition, both sides rested. The justice then recalled the witness, and questioned him as to whether he was positive that he was in the last car. In response to 'this- suggestion he changed his location to the car next to the last. The defendant then showed by persuasive evidence that plaintiff was not in that car. Notwithstanding, the justice promptly gave judgment for plaintiff. It would be a gross injustice [870]*870to permit the judgment to stand. It must be reversed, and a new trial ordered, with costs to appellant to abide the event.

Judgment reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

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SCOTT, J.

If any regard is to be given to the weight of evidence, this judgment must be reversed. The plaintiff swore positively that he was in the last car of the train when he was injured. It was conclusively proven that he was not in that car. With the testimony in that condition, both sides rested. The justice then recalled the witness, and questioned him as to whether he was positive that he was in the last car. In response to 'this- suggestion he changed his location to the car next to the last. The defendant then showed by persuasive evidence that plaintiff was not in that car. Notwithstanding, the justice promptly gave judgment for plaintiff. It would be a gross injustice [870]*870to permit the judgment to stand. It must be reversed, and a new trial ordered, with costs to appellant to abide the event.

Judgment reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

Chiavarelli v. New York Central & Hudson River Railroad, 88 N.Y.S. 869 (N.Y. Ct. App. 1904).

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88 N.Y.S. 869 (Chiavarelli v. New York Central & Hudson River Railroad) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.