#### Mary Millar, Respondent, *v.*New York City Railway Company, Appellant.

First Department,

February 7, 1908.

Railroad — negligence—injury caused by starting, of surface car— weight of evidence.

Action to recover for injuries alleged to have been received by the sudden starting of a surface car while the plaintiff was alighting. Evidence examined and,

*Held,*that a verdict for the plaintiff was against the weight of evidence.

*193Appeal by the defendant, the New York City 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 New York on the 13th day of June, 1907, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 21st day of June, 1907, denying the defendant’s motion for a new trial made upon the minutes.

*Bayard II. Ames [Anthony J. Ernest*with him on the brief] of counsel *[James L. Quaokenlyush,*attorney], for the appellant.

*Gormly J. Sjprovdl \_IhgJi M. Banner*with him on the brief] of counsel *\_Sproull, Banner c& Sjprovdl,*attorneys], for the respondent.'

Clause, J.:

The plaintiff was a passenger on an open electric south-bound car on the Second avenue line. Her claim is that without signal on her part to the conductor the car stopped even with the house line on the north side of Fourteenth street, that another woman passenger sitting in front of her alighted from the car'; that she then attempted to do so, had stepped down upon the running board, and as- she was about stepping to the street the car gave a sudden jerk and moved on, and she was thrown ; that the accident happened about half-past ten or twenty minutes of eleven in the'evening;- that after she fell the car went about a dozen yards to the best of her judgment.

She called one witness, who claimed to have been a passenger, who was sitting on the next to the rear seat, some three or four seats behind the plaintiff. This witness testified that he gave his name to no one at the time of the accident; that he happened to be in the case because he had seen in the *Herald*an advertisement for witnesses, and had received ten dollars a day for his attendance upon a former trial, and expected to be paid for his attendance at this one. He testified that the accident occurred between ten and half-past ten ; that the car stopped just before it arrived at Fourteenth street, and after the car had come to a full stop, and every one else had got off the car at that time but the plaintiff, the car gave a quick start, lurched suddenly towards the center of Fourteenth street, she was standing on the step or running board, and had hold of the upright support of_the car,'and while standing, in that position was thrown to the street. She lay there, and the. car *194proceeded on by the violence of its own momentum across the'crosstown car tracks, on Fourteenth'street. The car came to a stop very near the center of Fourteenth street, and remained there from seven to ten minutes.

The defendant called'ten witnesses, one' of whom, the motorman, was still in the employ of the cpmpany; -the conductor who was no longer in its employ. The eight other .witnesses, passengers .and passers-by upon the *street,*were' apparently disinterested and in'no way connected with the company. With the slight differences to be. expected from-witnesses of different capacities and fi'om,varying points of view, the story told by these ten men in substantial agreement is that as the car was slowing down to stop at.the north side of Fourteenth street, which was a transfer station, and before it had come to a stop, the plaintiff stepped or fell into the street; that after she fell the car proceeded but a few feet, estimated by the different observers, at from two to six feet; that it had not stopped before she fell; that it did not start up again .after it had stopped and before she fell and that it had not:proceeded into- Fourteenth" street at all, but had stopped at about the house line and was not thereafter moved until it went on down town.

The story told by the plaintiff’s one witness to the accident was not. only utterly at variance with that told by tire defendant’s witnesses, in details of time, location of the accident and subsequent movement of the car about winch there ought not to have, been disagreement if these witnesses were testifying a,bout the same occurrence, but wa’s so self-contradictory and unsatisfactory as to have little weight. In certain of his statements he contradicts the testimony of the plaintiff herself, no less than -the witnesses for the defendant.

While the weight of evidence- is not to be determined solely by the number of witnesses, we are of the opinion in this ease that the verdict was contrary to the great weight of evidence, and, therefore, that the judgment cannot stand.

The judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.

Pattebson, P. J., McLaughlin, Laughlin and Scott, JJ., concurred. ■ • " .

Judgment and order reversed, new trial ordered, costs to appellant to abide event. • ■"