Murray v. International Railway Co.

233 A.D. 262, 251 N.Y.S. 320, 1931 N.Y. App. Div. LEXIS 11253

Opinion

Per Curiam.

The plaintiff Edna C. Murray, while a passenger in a street railway car of the defendant, received an injury to her elbow by the fall of a window, she having her arm at the time resting upon its sill. When she entered the car she seated herself at a window already open, and the window itself fell after the car had proceeded some distance. She testified that when she took her seat, the window was already “ open to the full extent.” The record is devoid of proof as to how the window was constructed, or with what fasteners it was supplied. The plaintiffs rely entirely upon the single phrase in the plaintiff’s testimony given above. In our opinion this phrase is too indefinite and uncertain to show that the window was latched when the plaintiff took her seat. There is, therefore, a failure to show any defect either directly or circumstantially. (See Strembel v. Brooklyn Heights R. R. Co., 110 App. Div. 23; Boice v. Ulster & Delaware R. R. Co., 120 id. 643.)

The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concur. Present — Sears, P. J., Taylor, Edgcomb, Thompson and Crosby, JJ.

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