
    Frank Gormley, Respondent, v. Forty-second Street, Manhattanville and St. Nicholas Avenue Railway Company, Appellant.
    First Department,
    December 7, 1906.
    Negligence — driver of truck injured on street car tracks — verdict against evidence as to cause of injury.
    When the plaintiff's testimony that a street car ran into the rear end of his truck and threw him off is only confirmed by a witness who saw the wagon immediately after the accident, and testified that the hind wheel had evidently been struck by something, and is contradicted by several unimpeached witnesses, one of them an eye-witness who testifies that the accident occurred through the wheel of the truck skidding along the car track when no car was in sight, a verdict for the plaintiff is against the weight of evidence.
    Appeal by the defendant, the Forty-second Street, Manhattan - ville and St.-Richolas Avenue Railway Company, from a "judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rew York on the 20th day of April, 1906, upon the verdict of a jury, reduced by stipulation to $1,500, and also from an order entered in said clerk’s office on the 27th day of April, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      Bayard H. Ames, for the appellant.
    
      Milton Dammann, for the respondent.
   Patterson, J.:

The verdict of the jury in this case is against, evidence. The plaintiff sought to recover damages for personal injuries alleged to have -been sustained by reason of the negligence of the defendant’s servants in operating one of its cars on Forty? second street near First avenue in .the borough of Manhattan, in the city of New York. The plaintiff alone testified on his behalf as to the actual occurrence. - According to Ins. version he was driving a heavily loaded single horse truck in a southerly direction along First avenue, and turned into. Fprty-second street to proceed westerly along that street. líe was going through the tunnel on Forty-second street and lie testified that behind him was a car, the motorman of which was sounding his bell as a signal to clear the- track; that thereupon lie, the plaintiff, turned his horse to -the Cast-bound track,, so as to allow the car behind him to move forward, and in thus diverging his truck or wagon got upon the east-bound .track of the defends ant’s railway ; the car passed him, but before lie could turn again onto the west track, one of the defendant’s cars came .along on the east-bound, track and in front of him,- struck the hind wheel of his truck and threw him off. The only other witness called on behalf of the plaintiff testified that immediately after the accident occurred he came upon the scene and Observed th_at the hind wheel of the wagon the plaintiff was driving had evidently been struck by something. . .

Opposed to the plaintiff’s testimony as to the occurrence is that of several witnesses, none _of whom is in any way impeached. One of those witnesses testified from actual observation as to the cause of the accident. He swears that lie was near the westerly entrance to the Forty-second street tunnel when he saw the plaintiff driving his truck,, which had been upon the. southei'ly side of the street and on the railway track; that when lie first looked he was at a distance of 200 feet from the plaintiff ';, that he saw the plaintiff attempting to turn from the southerly side to the northerly side of the street when the wheel of the plaintiff’s truck swerved- or skidded against.a rail of the east-btinnd track and plain-, tiff was thereby thrown from the wagon. This witness testifies that when he saw this occurrence there was no car in sight. There is some criticism made upon the testimony of this witness and his inability to see the particular incident to which he testified at the distance from which lie says he observed it, but there is no improbability whatever in his statement, The motorman of. the car- on the west-bound track,"whic'h car followed the plaintiff, before the latter turned towards the south, testifies that the plaintiff’.s wágon was in front of him, pointing diagonally across Forty-second street; lie saw the plaintiff fall from his wagon, and there was no other car in the tunnel at that time; nor did any other car pass him from the time of the occurrence of the accident until the witness reached Third avenue, when he saw a policeman and reported the accident. That policeman testified that he boarded an east-bound car and went upon it to the scene of the accident, and that he had a conversation, witli the plaintiff, who, when asked how that accident occurred, said lie fell from his wagon, but made no reference to having been struck by a car; and the witness so entered it upon his book and so reported it at the police station.

The judgment and order appealed from must be reversed and a new trial ordered, with costp to the appellant to abide the event.

Ingraham, McLaughlin, Laoghlin and Clarke, JJ., concurred.

Judgment and order reversed, new. trial ordered, costs to appellant to abide event. Order filed.  