Koester v. Interurban St. Ry. Co.

90 N.Y.S. 375

Opinion

FREEDMAN, P. J.

Plaintiff’s theory, upon which he succeeded, was that defendant’s car was at a standstill at the time he attempted to board it. In this he remained wholly uncorroborated. Upon this point he was contradicted by four witnesses, two of whom have no interest in the result of the action, and from whose testimony it appeared that at the time the car was in such rapid motion that plaintiff’s attempt to board it was dangerous. Admittedly the accident occurred in or about the middle of the block, and this strengthens defendant’s case upon the question of probabilities. In my opinion, the evidence preponderates so much in favor - of defendant’s theory that in the interest of justice a new trial should be ordered.

Judgment and order appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.