Foley v. Interurban Street Railway Co.

Appellate Terms of the Supreme Court of New York

Foley v. Interurban Street Railway Co.

88 N.Y.S. 932

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 23, 1904

StatusPublished

This text of 88 N.Y.S. 932 (Foley v. Interurban Street Railway Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Foley v. Interurban Street Railway Co., 88 N.Y.S. 932 (N.Y. Ct. App. 1904).

Pincite

Opinion

SCOTT, J.

Excluding altogether the testimony of the motorman, because he may be deemed an interested witness, the great preponderance of evidence is to the effect that plaintiff’s wagon was driven onto the track within a few feet 'of the moving car; that the motorman did what he could to avoid a collision, and failed only because of the short distance between the wagon and the car. The nature and results of the accident are consistent with this state of facts, but not easily reconciled with the story told by plaintiff’s driver. Of the witnesses called to corroborate the driver, one certainly did not see the accident, but merely its results, and the other is so extremely uncertain in her recollection of the event that she testified that the wagon was coming downtown, whereas all the other witnesses on both sides agree that it was going uptown. Upon the- whole case we think that justice would be served by a retrial.

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

Free access — add to your briefcase to read the full text and ask questions with AI

SCOTT, J.

Excluding altogether the testimony of the motorman, because he may be deemed an interested witness, the great preponderance of evidence is to the effect that plaintiff’s wagon was driven onto the track within a few feet 'of the moving car; that the motorman did what he could to avoid a collision, and failed only because of the short distance between the wagon and the car. The nature and results of the accident are consistent with this state of facts, but not easily reconciled with the story told by plaintiff’s driver. Of the witnesses called to corroborate the driver, one certainly did not see the accident, but merely its results, and the other is so extremely uncertain in her recollection of the event that she testified that the wagon was coming downtown, whereas all the other witnesses on both sides agree that it was going uptown. Upon the- whole case we think that justice would be served by a retrial.

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

Cite This Page — Counsel Stack

Bluebook (online)

88 N.Y.S. 932, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foley-v-interurban-street-railway-co-nyappterm-1904.