#### Christian Hansen, Respondent, *v.*The Third Avenue Railroad Co., Appellant.

(Supreme Court, Appellate Term,

May, 1899.)

Negligence — Cable car accident — Judgment against. the weight of evidence.

Where the "testimony of the plaintiff to the effect, that, while he "witÜ á Box'of . tools under, his-’arm was attempting'to. board a pable car at rest and had one foot on its step and one hand on its hand rail, the conductor Started the car suddenly and threw him into-.an .' excavation near thb track,'is confuted by five witnesses, of. whom two were disinterested passengers, and they state that the car was ■ in motion,- that the tool box was upon the -plaintiff’s right shoulder in such a manner, that'it obstructed the line of his vision,, that he .-never • reached the car at all, and that he fell into the excavation while making the attempt, a judgment- for the plaintiff will be reversed as 1 against the weight *of*evidence.

Appeal by the defendant .from a judgment-, rendered in favor of the plaintiff in. the Eleventh District Municipal -Court, borough of - Manhattan.

*525Hoadly, Lauterbach *&*Johnson, for appellant.

Z. Kurzman, for respondent.

Freedman, P. J.

This action was brought, to recover damages for injuries to the person and property of the plaintiff, sustained by reason of the alleged negligence of the defendant.

The plaintiff testifies that, on the 2d day of December, 1898, he was at the corner of Eighty-sixth street and Third avenue, waiting to board an uptown car; that he saw a car of the defendant approaching, and signalled the conductor to stop; that he had a box of tools under his arm; that the car came to a stop; that two men ahead of him got on the car, and that when he attempted to get on, and while he had one foot on the step, and one hand on the handrail of the car, the conductor rang the bell, and the car suddenly started, which caused him to be violently thrown from the car, and to fall into an excavation in the street near the side of the car; and that thus he sustained the injuries for which he brought this action. It is claimed by the plaintiff that he stands corroborated by the testimony of the witness, Abraham Seigel, but a careful examination of Seigel’s testimony fails to show a corroboration in several important particulars, and in some respects it is substantially a contradiction. Moreover, it appears that this witness was on the side of the street opposite to the side on which the. accident happened, and, therefore, had a more limited opportunity for observing the occurrence than the other witnesses. The defendant produced six witnesses, the conductor and gripman of the car, the conductor of a car immediately behind, and shown to be very near the car the plaintiff attempted to board, a watchman in the employ of the street contractors, who were making the excavation referred to, and two passengers on the car last named. The two passengers were shown to be wholly disinterested and the watchman was •apparently so. All of these witnesses testified that the car in question was moving slowly, as it passed the crossing, and made no stop, until after the accident. Five of them testified that they each saw the plaintiff start forward in an attempt to board the car; that the tool-box was upon his right shoulder in such a way as to obstruct his line of vision; that as he followed after the car, endeavoring to reach it, he stepped into the ditch and fell, and that at no time did he have hold of the car, nor did the car hit him.

*526The testimony of these witnesses is very clear and convincing.

From this testimony, and from, all the facts and circumstances, as ■ disclosed by the record, there appears to be such a clear preponderance of evidence, in favor of the defendant’s version of "the occurrence, that a new trial should he ordered.. .

MagLeatt and Leventritt, JJ., concur.

Judgment reversed, new trial ordered, with costs to appellant to abide event.