O’NEILL v. INTERURBAN ST. RY. CO.
(Supreme Court, Appellate Term.
January 25, 1904.)
1. Personal Injury Case—Weight of Evidence.
Where plaintiff in an action against a street railway is the only witness sworn in her behalf, and defendant calls four witnesses, three of whom are disinterested, and the fourth a former employé, all of whom contradict the plaintiff and testify to her contributory negligence, a judgment for plaintiff is against the weight of evidence.
Appeal from Municipal Court, Borough of Manhattan, Tenth District.
Action by Mary O’Neill against the Interurban Street Railway Company. Judgment for plaintiff, and defendant appeals. ' Reversed.
Argued before FREEDMAN, P. J., and MacLEAN and DAVIS, JJ.
A. K. Wing, for appellant.
M. F. Burke, for respondent.
PER CURIAM.
This is one of the customary actions for damages •alleged to have been sustained by the negligence of the defendant. The plaintiff was the only witness sworn in her behalf. The defendant called four witnesses, three of whom were wholly disinterested; the fourth being the conductor of the car at the time of the accident, but who has since been engaged in other employment, having no connection with the defendant. These four witnesses contradicted the plaintiff’s version of the accident, and, if their testimony is to be believed, the plaintiff was clearly guilty of contributory negligence. The judgment is clearly against the weight of the evidence, and must be reversed.
Judgment reversed and new trial ordered, with costs to the appellant to abide the event.