
    John McGrath, Respondent, v. The Nassau Electric Railroad Company, Appellant.
    Sécond Department,
    October 9, 1908.
    Negligence — amended complaint stating new version of accident — railroad— injury to passenger on surface car.
    Although the original complaint in an action to recover for personal injuries alleged that they were caused by the sudden starting of a surface car before the plaintiff had an opportunity to alight, and the amended complaint charged that the plaintiff was pushed or dragged from the car by the conductor, the variance of the two versions of the accident is not such as to make it the duty of the court to set aside a verdict for the plaintiff where it appears that the original complaint was verified when the plaintiff was in the hospital where his leg had been amputated, that he could not read, that only part of the complaint was read to him, and that he did not know of the allegations respecting the-manner of the accident.
    
      Evidence in an action to recover for personal injuries to [a passenger who was pushed from the running board of a surface car by the conductor examined,. and held, that a verdict for the plaintiff was not against the weight of evidence.
    Appeal "by the defendant,' the Nassau Electric Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 13th day of January, 1908, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 13th day of January, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      D. A. Marsh [George D. Yeomans with him on the brief], for the appellant.
    
      Robert H. Elder, for the respondent.
   Woodward, J.:

The plaintiff has a judgment for $10,000, entered upon the verdict of a jury in an action for damages for personal injuries alleged to have been sustained through the negligence of the defendant, the allegation of the amended complaint being that the plaintiff Was pushed or dragged off the defendant’s car by the conductor in charge of the same, while engaged in the performance of his duties p as such conductor. The only point urged on this appeal is that the verdict is against the weight of the evidence. ■

From a reading of the evidence we are of the opinion that no one would question that the plaintiff had established liis case, were it not for the fact that in his original complaint it was alleged that the accident happened by reason of the sudden starting of the car before the plaintiff had been given an opportunity to alight in safety at a street corner. -T> is urged, however, that this complaint being verified and so out of harmony with the plaintiff’s present version, it is the duty of the court to set e-side the verdict as being against the weight of evidence. We cannot agree with this view. ■ The original complaint was verified while yet the plaintiff was in the hospital, where he had a leg amputated ; he could not read* and b® says that the complaint was read to,him only in part, and that I>. did not know of the allegation as to the way the accident happened. The evidence in the case, some of which appears to have been brought to light after the original complaint was prepared, coincides with the plaintiff’s present version; it is nowhere suggested in the evidence that the accident was due to the sudden starting of the car or that the car had come to a standstill. On the contrary, both the witnesses for the plaintiff and the defendant agree that the car was in motion, apparently running five to six miles an hour, and the controversy related to the manner of the plaintiff leaving the running board of the car, where he was obliged to stand by reason of the crowded condition of the car. The plaintiff’s version is that the conductor grabbed him and pushed him off, after, some words between them as to the method of operating the car, and the defendant’s testimony tended to show that the plaintiff, after some aggressive remarks to the conductor, jumped from the car while it was in motion. On this point the plaintiff testified himself, and was corroborated by a young woman who saw the accident from a second-story window immediately overlooking the point where the accident occurred, and in some measure by one or two other witnesses. The defendant presented the greater number of witnesses in support of its theory, but a reading of the evidence does not warrant this court in saying that the weight of evidence is against the verdict. It seems to- us that this case presented a fair conflict of evidence, and that the verdict of the jury should be sustained.

The judgment and order appealed from should be affirmed, with costs.

Present — Woodward, Jenks, Hooker, Gaynor and Miller, JJ.

Judgment and order unanimously affirmed, with costs.  