Foley v. Interurban Street Railway Co.

88 N.Y.S. 932

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.