Williams v. New York City Railway Co.

49 Misc. 253, 97 N.Y.S. 393

Opinion

Scott, J.

The verdict was clearly against the weight of •the evidence. The witnesses for the plaintiff, as to the happening of the accident, were the driver of the wagon and •one bystander. The driver’s evidence was of a character which gave no clear idea of how the accident happened. The bystander testified that the car was coming north on the •easterly track, at a high rate of speed, about midway between Thirty-seventh and Thirty-eighth streets, when the wagon was at the southwest corner of Thirty-eighth street and Ninth avenue, and that the driver went right ahead and •drove in front of the car. One of the driver’s versions seems to agree with this story, which is consistent with the testimony given by all the defendant’s witnesses, that the •driver tried to cross about fifteen or twenty feet ahead of the car. The result of the evidence is that the driver saw, ■or could have seen, the car coming in ample time to avoid a -collision; but, either recklessly or stupidly, kept on and drove directly in front of it, thus inviting the collision that occurred.

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

Blanchard and Dowling, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.