
    Joseph Mosesco, Respondent, v. Interborough Rapid Transit Company, Appellant.
    Second Department,
    June 8, 1906.
    Negligence — verdict for plaintiff must be supported by preponderance of evidence —■ inj ury to band by car door.
    Although a plaintiff suing to recover on the ground of the negligence of the defendant maybe entitled to go to the jury when the evidence in his favor does not preponderate, yet a verdict in his favor must be supported by a preponderance of evidence in order to stand as a matter of law.
    Verdict for injury to hand of passenger by closing of car door set aside as not warranted by the evidence.
    Appeal by the defendant, the Interborough Rapid Transit Company, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff, entered upon the verdict of a jury.
    
      George B. Coughlan, for the appellant.
    
      Eugene I. Yuells, for the respondent.
   GAYNOR, J.:

It seems to me that the verdict was plainly against the weight of evidence. The plaintiff’s evidence was improbable. He was leaving a Third avenue elevated railroad train at the end of the route at South Ferry, Manhattan. He testified that he was the last passenger leaving his car, that in going through the car door he put his left hand on the jamb and that the conductor was inside of the car behind him and closed the door on his hand. He had no witness of the accident. The guard testified for the defendant that he stood in his regular place on the platform between two cars; that after the plaintiff came out on the platform the door swung to and' Caught his hand on the left jainb where it swung on its hinges, and that he (the guard) pushed it open again ; that the door was open and caught back by the catch, but had been pushed loose by a woman who was in the seat behind it; that she and other passengers were behind the plaintiff in getting off. The conductor of the train testified that he-did not see the accident; that he was at the rear end of the train. The general supervisor at the terminal testitied that lie saw the plaintiff after he came off the train, and that the plaintiff said lie- was standing on the platform of the car and the door closed and hurt his hand. He accused no one..

The verdict is not supported by a preponderance of evidence in ' favor of the plaintiff, which is a legal requisite. Where such preponderance does not exist, there, is no legal basis for a verdict for the plaintiff; such a verdict would have no foundation under it. When that is the state, of the evidence it is true that the' casé lias fo be sent to the jury- under recent decisions of our highest court; but if there he a verdict for the'plaintiff it cannot be permitted -to stand as matter of law; it has mo legal basis,

The judgment should be reversed.

Hirschberg, P. J., Woodward, Rich and Miller, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  