#### Bertha Reiss, Plaintiff-Respondent, *v.*Adrian H. Joline and Douglas Robinson, as Receivers of the New York City Railway Company, Defendants-Appellants.

(Supreme Court, Appellate Term,

November, 1910.)

Pleading — Amendments — Amendments by leave of court — Amendment to conform to proof — After verdict.

In an action against a carrier to recover damages for personal injuries where the complaint originally claimed that the injuries arose from the sudden starting of the ear and the plaintiff was allowed at the first trial to amend her complaint by alleging the cause to have been the sudden stoppage of the car 'to which she testified; and, where on the second trial she testifies the injuries arose from the sudden starting of the ear, it is error for the court to allow the complaint to be “amended back” so as to conform to the testimony of the plaintiff at the second trial, and a verdict in her favor should be set aside on motion for a new trial as contrary to the evidence.

Appeal by the defendants from a judgment of the City Court of the city of New York, entered in favor of the plaintiff upon the verdict of a jury, and also from an order denying a motion for a new trial.

Masten & Nichols (Bayard H. Ames and Walter Henry Wood, of counsel), for appellants.

Simeon Goodelman, for respondent.

*350Bijur, J.

This 'action was brought to recover damages for personal injuries sustained by plaintiff in alighting from a south-bound Eighth avenue car when she was about to transfer to an east-bound Eighty-sixth street car. The car was an open one.

On the first trial, plaintiff testified that she was thrown while standing on the running-board by the sudden stopping of the car, and that she saw the Eighty-sixth street car waiting at the corner. At the second trial, she claimed that she was thrown by the sudden starting of the Eighth avenue car, after she had partly alighted, and that the Eighty-sixth street car was not at that time in sight. At the time of the first trial, her complaint read that she was injured by the sudden starting of the car, which she was allowed to amend to read “ sudden stopping.”

Her complaint on the second trial thus read that she was injured by the sudden stopping of the car; but, at the close of that trial, her counsel was allowed to “ amend back ” by pleading the sudden starting of the car. Her only explanation of the divergence in her testimony at the first and second trials was that it was a mistake. That explanation, however, is not satisfactory, particularly in the light of her changed testimony' in regard to the Eighty-sixth street car, the presence of which, as testified to by her at the first trial • — • but denied on the second trial — would have furnished a motive for haste on her part in alighting before the car had stopped.-

Ordinarily an appellate court will be reluctant to reverse a judgment merely on the weight of evidence. In this case, however, the plaintiff, by her contradictory testimony on two trials and the vacillation of her counsel in regard to the pleadings, indicates that she, herself, is in great doubt *as to the vital point in the*case, namely, whether the accident occurred through the sudden stopping or the sudden starting of the car. These two incidents are plainly separable, and must have been entirely distinct in her memory, if her memory was unimpaired, or if she had sought to be accurate and truthful. Assuming even the former contingency, as the more charitable view, the court will not hesitate to see to it that the defendant is not mulcted in damages by a ver*351diet which must necessarily have heen affected by sympathy rather than based upon testimony upon which a conclusion of negligence and corresponding liability can properly have heen predicated. See Kenny v. Ocean Steamship CXo., 11 N. Y. Supp. 412. Tfc is scarcely necessary to argue at length that there is a vital and salient difference, as a matter of fact, between all the circumstances attending an injury caused by the sudden starting of the car and one caused by its sudden stoppage.

In view of these salient inconsistencies in plaintiff’s testimony, and the fact that she was uncorroborated, while the defendant’s version of the accident -was confirmed by two disinterested witnesses, I find that the verdict must he set aside as contrary to the evidence.

Plaintiff’s contention, that, because defendant did not move to dismiss the complaint at the close of all the evidence, it is -precluded from moving to set aside the verdict as contrary to the evidence, is without foundation. McDonald v. Metropolitan St. R. Co., 167 N. Y. 166.

Judgment and order reversed -and new trial ordered, with costs to appellants to abide the event.

Seabury and Page, JJ., concur.

Judgment and order reversed and new trial ordered.