Wieland v. Third Avenue Transit Corp.

270 A.D. 885, 61 N.Y.S.2d 359

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 18, 1946
• Status: Published

Opinions

Per Curiam.

The evidence presented by the plaintiff was insufficient to sustain the verdict. Assuming that the evidence was sufficient to justify an inference that deceased was struck by a trolley car, it is not sufficient to justify a further inference that the contact was due to negligence of the operator of the car. The suggestion is made that the deceased was crossing the street from west to east, was struck on his right side by a northbound trolley; therefore, he must have crossed in front of the trolley and the operator was negligent in not seeing him. While deceased must have undertaken an east crossing shortly before the accident, there is no indication as to the direction in which he was moving at the time of the accident, except such inference as may be drawn, from the nature of his injuries, as to the side on which he was struck. While an opinion cannot he formed with conclusiveness from the evidence of injuries in this case, an analysis of the injuries indicates that deceased was struck on his left side and fell on his right side. If that be true, the hypotheses of liability are negatived. At least, the evidence lacks the inferential qualities necessary to sustain the verdict.

The order setting asidfe the verdict and dismissing the complaint and the judgment entered thereon should be affirmed, with costs.