Stone v. Great Eastern Stages, Inc.

256 A.D. 822, 8 N.Y.S.2d 673, 1939 N.Y. App. Div. LEXIS 5022

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 9, 1939
• Status: Published

Opinion

Action to recover damages for injuries sustained when appellant’s automobile bus struck a sidewalk newsstand, causing it, in turn, to strike plaintiff. Judgment affirmed, with costs. No opinion. Hagarty, Davis, Johnston and Close, JJ., concur; Taylor, J., dissents and votes to reverse and dismiss the complaint, with the following memorandum: The evidence adduced by plaintiff as to the manner in which the accident happened was incredible as matter of law and raised no issue. It was physically impossible for the accident to have happened in the manner described in such evidence. (Hudson v. R., W. & O. R. R. Co., 145 N. Y. 408, 412; Szpyrka v. International Railway Co., 213 App. Div. 390, 393; Fiddler v. N. Y. Central & H. R. R. R. Co., 64 id. 95, 100; vide, also, McRorie v. Monroe, 203 N. Y. 426, 434, and Matter of Harriot, 145 id. 540, 546.) The actual demonstrations and measurements put in evidence by appellant destroyed any probative or evidentiary value of the estimates and conjectures of plaintiff and her witness, and left no issue of fact in the case. (Lalor v. City of New York, 208 N. Y. 431, 434.) The happening of the accident, in my opinion, is consistent only with appellant’s theory of the cause thereof, based upon the testimony of its witness, Wheeler, a Long Island Railroad police officer. (Pols. 515-520.;