
    James Reynolds, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    
      Negligence — a passenger injured at a station by a sudden jerk of the train■—-when a verdict is against the weight of evidence.
    
    "When in an action brought to recover damages for an injury sustained by the plaintiff, while getting off a train, at a station reached before the one called for by his ticket, by reason of the train starting with a jerk, the plaintiff alone testifies to the sudden starting of the train and is contradicted by a number of witnesses, some of whom testify that the plaintiff attempted to leave the • train before it stopped, a verdict in favor of the plaintiff was set aside.
    Appeal by the plaintiff, James Reynolds, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 15th day •of February, 1897, setting aside the verdict of a jury in favor of the plaintiff and ordering a new trial.
    
      Thomas P. Wickes, for the appellant.
    
      Daniel W. Tears, for the respondent.
   Rumsey, J.:

The action was brought to recover damages for personal injuries received by the plaintiff while a passenger upon the train of the ■defendant going from New York to Yonkers, on the 6th of October, 1894. As the result of the trial the plaintiff recovered a verdict of $2,500, which was set aside and a new trial ordered by the trial judge, upon the ground that the verdict was contrary to the weight ■of the evidence.

The claim of the plaintiff was that on the night of October 6, 1894, he had bought a ticket to go from New York to Yonkers.; that when the train reached Kingsbridge he started to leave it, intending to take another train which reached Yonkers at a station nearer his house than the one upon which he was then riding; that as he was debarking from the train, after it had stopped at the station,, it suddenly started with a jerk and he was thrown to the ground, his hand striking the track in front of the wheels, which passed over it and crushed it. He said that after he had fallen the train was stopped and' he was taken aboard' again and taken to Yonkers. The ground of Iris complaint was. that the train was started as he was getting off, without giving him an opportunity to step upon the ground. No other witness than he was sworn in his behalf on that subject, and the fact. that the train was started as he was getting off of it stands upon his uncorroborated testimony. On the part of the defendant several witnesses were sworn upon that ¡subject, some of whom testified that the plaintiff attempted to leave the train before it had stopped at the station and fell in; his attempt. Others testified that the train; after ¡stopping at the station and starting again, was not stopped until it reached the next station, and that it was not started and stopped after proceeding a short distance, as testified to by the plaintiff. Upon these two points the evidence was overwhelming, and while the testimony -was that of interested witnesses, as was also the testimony given on behalf of the plaintiff with regard to the accident, yet there- was so much of it, and it was so given, as to entitle it to very great weight. There was evidence in addition tending to show that the plaintiff, at the time of receiving the injury, was considerably intoxicated. That he had been drinking something was not denied!, but he did deny that he was intoxicated ; and in that, respect lie: was corroborated by other witnesses, so that upon that subject there was a fair conflict of testimony. But the serious question in the case,-as will be seen, was whether the train was started without giving the plaintiff an opportunity to leave it. In considering -that question it must not be forgotten that the defendant’s trainmen had no reason to suppose that ■the plaintiff was about to leave the train, because he. had taken a ticket for Yonkers and the. -train had not yet reached that station. .Upon the whole case, it is quite clear that the evidence in favor of the defendant was largely preponderating upon the' vital question whether the train started while the defendant was getting off from it.

In such cases as this, where the trial judge who heard the testimony and saw the witnesses has set aside the verdict because it is against the weight of evidence, great weight is to be attached to his conclusion,- and unless the appellate court can clearly see that he ■is wrong in his decision, the order granting a new trial should be affirmed.

Such must be the result in this case, and the order must be affirmed, with costs to the respondent to abide the event of the action.

Van Brunt, P. J., Patterson, O’Brien and Parker, JJ., concurred.

Order affirmed, with costs to the respondent to abide the event of the action.  