
    William O’Keefe, an Infant, by Ellen O’Keefe, his Guardian Ad Litem, Respondent, v. The Third Avenue Railroad Co., Appellant.
    (City Court of New York, General Term,
    December, 1898.)
    Negligence — Collision with a street car — Verdict against the weight of evidence.
    In an action for negligence, where plaintiff’s driver testifies that he was driving south along a street, in a cart with the plaintiff; that he turned to cross the nearest or southbound track and did not then see a car on that track within a block, and that while on that track he stopped to allow a car on a northbound track and some wagons to pass, and was then struck by a southbound car; and six witnesses, four of whom were disinterested, testify that plaintiff’s driver drove along parallel with the southbound car and a few feet ahead of it and ’ was struck when he suddenly turned to cross the track in front of it, a verdict for plaintiff must be deemed to be against the weight of evidence, and a new trial will be granted on condition that the defendant pay plaintiff’s costs and disbursements, with costs to the appellant to abide the event.
    Appeal from a judgment in favor of plaintiff, entered upon a verdict, and from an order denying a motion for a new trial.
    Phillipp E. Reville, for appellant.
    Hoadly, Lauterbach & Johnson, Edgar M. Johnson and Francis A. Boland, for respondent.
   Olcott, J.

This is an appeal from a judgment in favor of the plaintiff, entered upon a verdict rendered at a trial term of this court, and from an order denying defendant’s motion; for a new trial which was based, among other grounds, upon the contention that the verdict was contrary to the evidence and against the weight thereof.

Plaintiff, a boy, something less than five years old, was beside the driver on the seat of a dog cart, which was driven down the westerly side of Third avenue. When Fifty-first street was reached, the driver turned the horse eastward, and started to cross the defendant’s southbound or westerly track. Thereupon, or shortly thereafter, the defendant’s southbound car struck the shafts of the wagon and the plaintiff was thrown out and received his injuries.

The witnesses all agree upon the foregoing facts; the discrepancies in their testimony relate to the responsibility for the collision. The plaintiff’s driver, who is his sole witness, upon that point, testified that when he started to cross the track there was no southbound car “ within a block in sight; ” that when his horse had proceeded across the westerly track' (and when the wagon had just reached that track and was standing headed in a somewhat southeasterly direction so that the driver’s back was partially turned toward the approaching southbound car) a northbound car and some wagons following it caused him to stop so that while standing waiting for these northbound vehicles to pass, the southbound car came upon him without warning and smashed his cart, causing the plaintiff’s injuries.

The defendant introduced the evidence of six witnesses, four of them appearing to have no interest in the event of the trial, who told stories which were in substantial agreement with each other on the material points, and which contradicted the testimony of plaintiff’s driver.

They state that the latter was driving down the avenue close to and parallel with the southbound car and a few feet ahead of it; that at Fifty-first street he suddenly and without indication of his intention so to do turned eastward and “ cut off ” the car, going so close in front of it that it was impossible for the gripman to stop it in time to avoid collision; that the car was going at a normal or less than normal rate of speed; and the testimony of some of them makes it appear that the gripman was clanging his bell to warn school children who were crossing the avenue at Fifty-first street.

It will be observed that there is no possibility of concluding that these witnesses were confused or mistaken. They were clearly all swearing falsely if the plaintiff’s driver’s story is true, for the latter swears that he started to cross the track when no southbound car was within a block, while all of these six witnesses for the defendant state that they observed plaintiff’s cart going down parallel with the car for a distance before the accident occurred or was ■ imminent.

We cannot escape the conclusion that the case is precisely similar to and within the reasoning of the case of Pierce v. Metropolitan St. R. Co., 21 App. Div. 427, and that our decision must conform with the decision in that case. We .find, upon the whole testimony, that the plaintiff failed to establish his case by any preponderance of evidence, but that, on the contrary, the verdict was flagrantly against the weight of evidence and that the ends of justice will be subserved by the submission of the case to another jury.

And, following the terms of relief granted in the Pierce case, the order denying a new trial will be reversed and a new trial granted upon condition that the defendant pay to the plaintiff the costs and disbursements of the former trial, the appellant to have costs of this appeal to abide the event of the action.

MoCabthy and Scotchman, JJ., concur.

Order reversed and new trial granted, upon condition that defendant pay costs and disbursements of former trial, appellant to have costs of this appeal to abide event.  