#### SCHAFFER v. SECOND AVE. R. CO.

(Supreme Court, Appellate Division, First Department.

January 24, 1896.)

Witness—Cbedibility—Mistake in Testimony.

The mere fact that plaintiff", in an action for injuries received while a passenger on defendant’s street car, made a mistake in his testimony as to the number of the car, does not necessarily impeach his testimony, so that no reliance should be placed on the residue.

Appeal from court of common pleas, trial term.

Action by William H. Schaffer against the Second Avenue Railroad Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff for $1,197.76 damages, and costs, and from an order denying a motion for a new trial, defendant appeals.

Affirmed.

Argued before VAN BRUNT, P. J., and BARRETT, O’BRIEN, WILLIAMS, and PATTERSON, JJ.

Mr. Rogers, for appellant.

Mr. Stuart, for respondent.

VAN BRUNT, P. J.

This action was brought to recover for personal injuries alleged to have been sustained by the plaintiff on the 16th of August, 1893, while he was alighting from one of the defendant’s cars.

The plaintiff’s case, as far as the details of the accident were concerned, depended upon his own testimony. He stated that, on the morning of the 16th of August, he started from his home for his place ■of business, and that he took car No. 422 at the corner of 120th street and 1st avenue, which was an open car, occupying the second seat from the back. The destination of the plaintiff was 68th street and 1st avenue. He testified that the car arrived at 68th street about *-S*o’clock, or a few minutes before, and was obstructed, on the northerly side of the way, so that it could not go any further. It came to a dead stop. The conductor stood on the step of the car, talking with the plaintiff. The plaintiff asked him to step a little ahead, the conductor standing in his way. The plaintiff says:

> “I asked him to step a little ahead; that I was going to get off there, to ■save him the trouble of going across the street. He said, ‘All right,’ stepped .ahead, and I started and got off, and was throwed off, and I stepped down -on the step. I was half way off, or halt way on the step; just enough to throw ■me when the car started.”

The plaintiff further testified that he had been in the habit of riding on these cars; that they were stopped or started by a whistle, .and that no whistle was blown so far as he heard; that he notified -the conductor to stop, and that at that time the car was at a dead stop, and had stopped surely half a minute, before the conductor told .him to get off.

Upon the part of the defendant the conductor of car No. 422 was ¡produced, and by his record, made at the time, it appeared that no -such accident happened upon that car, and that he passed 68th street .at 7:38-?¡, and reached Astor Place and Broadway at 8:12. The conductor of car No. 428 testified that Ms car left Harlem at 7:33 and reached 68th street about 8 o’clock; that there was a passenger on *1047the car who resembled the plaintiff, and, just as the car was passing the northerly side of 68th street, this passenger got off the car, without giving, as far as the conductor could remember, any notice to stop the car at 68th street, or telling him that he wanted to get off the car at that point; that at the time the passenger alighted the car had not stopped, but was going slowly; that the man fell, but he got up, and went away apparently not injured. The driver of car No. 428 testified that he saw the plaintiff on his car on the trip referred to by the conductor; that he got off the car at 68th street or 69th street; that he did not get any signal to stop the car; neither did the car stop; that he saw the man in°the street, getting up, after he had fallen; and that it was only after he saw the man lying in the street that the speed of the car was increased. Another witness was examined upon the part of the defendant, who was an employé of the firm of W. & J. Sloane, and he remembers riding on a car of the 2d Avenue Line, 1st Avenue Branch, from which a man fell off, or was hurt in some way; that he could not fix the date, but it was either in July or August; that he could not tell whether the plaintiff was the man whom he saw fall; that he recognized the driver and conductor who had testified as the driver and conductor of the car from which the man alighted and fell; that it was about 8 o’clock in the morning; that he saw the man after he fell, but did not see him get off the car; that the car was in motion when he saw the man; it was in the act of stopping, going very slowly, but had not stopped at all, at the upper cross walk.

Upon this state of the evidence, at the termination of the case, the defendant moved to dismiss the complaint, upon the ground that there was no evidence to sustain the finding of the jury that the defendant, its agents, or servants, were negligent, which negligence was the sole cause of the injury alleged to have been received by the plaintiff, and that there was not sufficient evidence to sustain a finding by the jury that the plaintiff himself was without negligence contributing to the alleged injury. The case was submitted to the jury, and a verdict was found in favor of the plaintiff, and from the judgment thereupon entered, and from an order made denying a motion for a new trial, this appeal is taken.

It is now urged, before us, that the facts do not establish the propositions to which attention has been called. It seems to us that there is a probability that the plaintiff may have been mistaken in the number of the car upon which he rode on the morning in question; but there was a clear conflict of evidence upon the question as to whether the car was in motion when the plaintiff alighted from it, and whether he notified the conductor of his desire to alight. This conflict of evidence it seems to have been necessary to submit to the jury. The mere fact that the plaintiff made a mistake in regard to the number of the car did not necessarily tend to impeach Ms testimony, so that no reliance should be placed upon the remainder.

We do not see, therefore, any ground for interfering with the verdict, and the judgment and order appealed from should be affirmed, with costs. All concur.