Etshells v. Fargo

160 A.D. 874, 144 N.Y.S. 1069

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1913
• Status: Published

Opinion

Scott, J.:

The question of defendant’s liability turns upon whether or not plaintiff had stepped onto the roadway before he was struck by defendant’s vehicle. Upon this question the weight of the evidence is overwhelmingly in favor of the defendant. Plaintiff’s testimony that he had not stepped off the curb is not supported by any other- witness, while he is contradicted by a number of witnesses, some of whom at least appear to be wholly disinterested and worthy of belief. The judgment and order appealed from must, therefore, be reversed and a new trial granted, with costs to appellant to abide the event. Clarke and Dowling, JJ., concurred; Ingraham, P. J., and Hotchkiss, J., dissented. Judgment and order reversed and new trial ordered, with costs to appellant to abide event. Order to be settled on notice.