Xippas v. New York Transp. Co.

123 N.Y.S. 238

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 17, 1910
• Status: Published

Opinion

BIJUR, J.

Plaintiff sues for damages for injuries received through being run over by one of defendant’s electric cabs, at Seventh avenue and Thirtieth street, on the evening of December 13, 1909, while it was raining quite hard. Plaintiff was carrying an open umbrella at the time. According to plaintiff’s story, the driver of the cab may have been negligent, and plaintiff may have been free from contributory negligence. According to defendant’s story, the driver was plainly careful, and the accident was due solely to plaintiff’s negligence.

Plaintiff was a Greek, who could not speak English well, and, as no interpreter was at hand, his story lacked precision. His counsel produced two witnesses, both Greeks, who happened to be in the vicinity, separately. As neither spoke English, beyond a few words and phrases, it was found impossible to examine them; but counsel for defendant, in order to expedite the trial, conceded that their testimony would be the same as plaintiff’s. Defendant’s version of the accident, as stated by the driver, was sustained in every particular by a colored. boy, about 14 years of age, who witnessed it from the northwest corner of Thirtieth street, by a man who was walking north on Seventh avenue just below Thirtieth street, by a policeman, who came on the scene immediately after plaintiff was run down, who did not see the accident, but who confirmed the position of the cab and of plaintiff’s person thereunder, and, finally, by a member of the municipal fire department who was waiting on the northwest corner of Twenty-Ninth street for a south-bound car, and who saw the entire occurrence clearly from a point less than 200 feet distant.

While the story of the colored boy is open to doubt in one or two particulars, these inaccuracies may be attributed to his youth. Some doubt as to the credibility of the pedestrian might arise from the rather improbable story that he tells as to how he happened to become a witness, although there is nothing inherently impossible in his narrative. The testimony, however, of the policeman and the fireman, are clear and accurate, and come from two witnesses evidently entirely disinterested. In view of this testimony, it seems that the accident could not possibly have happened at the point and in the manner claimed by the plaintiff; and, at the very best, it is apparent that he did not sustain the burden of proving his case by a fair preponderance of evidence. While, therefore, traditionally reluctant to reverse a judgment based upon the verdict of a jury, solely on the ground of its being against the weight of evidence, when a case like the one at bar is presented, where it appears evident that the jury must have been swayed by sympathy for the plaintiff’s apparent helplessness, instead of being influenced solely by the testimony, the court should not hesitate to do justice.

The judgment below is reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.