Staib v. Union Railway Co.

30 Misc. 777, 62 N.Y.S. 755

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 15, 1900
• Status: Published

Opinion

Per Curiam.

We cannot yield to defendant’s contention that the judgment for the plaintiff in this action is against the weight of- evidence. Although the defense was supported by the testimony of two apparently disinterested witnesses, the plaintiff, in addition to her own evidence, was entitled to the benefit of the presumption arising from the failure of the defendant to produce its mot-orman and conductor. It is true, the defendant gave testimony tending to excuse their absence, but if the motorman was sick, as claimed by the defendant, that was’ ground for an adjournment, and even though the conductor was out of the jurisdiction of the court, residing in Hassau county, he might have been examined by commission. The trial justice might well have viewed the explanation respecting the absence of these witnesses as entirely unsatisfactory, and, under the circumstances, we see no reason for disturbing the conclusion reached below.

Present: Beekman, P. J., Giegerich and O’Gorman, JJ.

Judgment affirmed, with costs.