Opinion
January, 1906.
I. Henry Harris, for respondent.
Geo. D. Youmans (H.F. Ives, of counsel), for appellant.
This is an appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff. The action was brought to recover for personal injuries alleged to have been received by the plaintiff while alighting from one of the defendant's cars.
The plaintiff stands alone and uncorroborated as to his version of the accident. He is contradicted in the substantial details of the accident by three eye witnesses, two of whom were disinterested. Three other witnesses, called by the defendant, testified in contradiction of the plaintiff as to circumstances existing after the accident, which tended to throw doubt upon the plaintiff's version thereof and, particularly, as to the condition of the plaintiff. In this state of the testimony, a judgment in favor of the plaintiff seems contrary to the weight of the evidence and calls for a reversal. Maloney v. Metropolitan St. R. Co., 95 A.D. 393.
The respondent's contention that this court cannot review the facts for the purpose of determining whether the verdict is contrary to the weight of evidence, because the appellant is appealing from the judgment and not from an order denying a new trial, is opposed to section 326 of the Municipal Court Act. See also Ayward v. Powers, 25 Misc. 476.
SCOTT and DOWLING, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.