Herbst v. New York City Railway Co.

93 N.Y.S. 1109

Opinion

SCOTT, P. J.

I do not think that we ought to affirm this judgment. The evidence leaves it much in doubt whether the car hit the cab at all, but, assuming that it did, I cannot find any satisfactory evidence that the collision was due to defendant’s negligence. Plaintiff’s witnesses appear to say that the horse backed the cab onto the cai tracks, and no evidence is given showing how far away the car was at the time. For all that appears, the cab may have backed into the car, or so close to it that the motorman could not stop in time to avoid a collision. On the whole case, it cannot be said any negligence on defendant’s part was shown. The damages also seem to be large. On the whole, justice would be best satisfied if the case be sent back for a retrial.

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