
    ELMIGER v. NEW YORK & Q. C. RY. CO.
    (Supremo Court, Appellate Division, Second Department.
    December 5, 1913.)
    Action by Frederick J. Elmiger against the New-York & Queens County Railway Company. •
   PER CURIAM.

Order reversed, and verdict for defendant unanimously reinstated, with costs. Plaintiff was not corroborated as to the alleged violent starting of the car as he was stepping on the rear platform. No one else seems to have seen or felt the “terrific force” which plaintiff described. Mr. Murphy, who had boarded this car upon the same occasion, and may be considered as favorable to plaintiff, a friend and business associate, could only say, “It is so long ago I could not state positively the manner in which this car started after I got on and got my seat.” Serious discrepancies in plaintiff’s testimony could hardly fail to tell against him with the jury. Their verdict for defendant does not show prejudice or an erroneous estimate of the weight of testimony. Instead, it may be .taken as a proper finding that plaintiff had failed to sustain the burden of establishing by the greater weight of evidence the facts necessary for any recovery.  