Opinion
December Term, 1899.
Order denying motion for new trial reversed and new trial granted, costs to abide the event.
The testimony of the plaintiff on the trial which now comes up for review brings the case within our decision in the suit of her husband against the same defendant and demands a reversal of the judgment. ( Thomas Hickman v. Nassau Electric R.R. Co., 41 App. Div. 629.) It is true that on the first trial of this action it appeared that the plaintiff walked slowly across the street, looking neither to the right nor the left, and that the picture presented was that of a person loitering heedlessly. ( Johanna Hickman v. Nassau Electric R.R. Co., 36 App. Div. 376.) On the trial of her husband's case, however, she testified that after looking both ways she walked fast in attempting to cross the street; and her testimony on the second trial of her own case is quite as strong to the same effect. This change cannot be attributed to our opinion on the first appeal, as the husband's case was tried before that opinion was handed down. A jury might well conclude that the evidence as given in the first instance was due to some misapprehension on the part of the plaintiff. At all events, a jury should be allowed to pass upon her credibility in this respect. The order should be reversed and a new trial granted, costs to abide the event. All concurred.