#### Clara Giltman, Appellant, *v.*The Brooklyn Heights Railroad Company, Respondent.

Second Department,

December 30, 1908.

¡Railroad — negligence — collision — evidence — unimpeaehed testimony of party.

Where a defendant railroad admits its negligence in causing a collision and the only issue litigated was as to whether the plaintiff was a passenger at the time, and there is no conflict of evidence or any circumstances from which an inference against her testimony that she was a passenger can be drawn, and nothing to impeach her credibility, the jury is not entitled to find for the defendant merely on the ground that the plaintiff was an interested witness. A verdict in the defendant’s favor will be reversed as against the weight of evidence.

Appeal by the plaintiff, Clara Giltman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 22d day of January, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 31st day of January, 1908, denying the plaintiff’s motion for a new trial made upon the minutes.

*David Tim [Samuel Rosenthal*with him on the brief], for the appellant.

*D. A. Marsh [George D. Yeomans*with him on the brief], for the respondent.

Rich, J.:

At the commencement of the trial, counsel for the defendant voluntarily admitted *“*that through the carelessness of its servant or servants the collision as alleged in the complaint did occur, and that the plaintiff was free from any negligence contributing to the injury,” leaving the only questions to be litigated, whether the plaintiff was a passenger upon one of the colliding cars, and if so whether she was injured and to what extent.

The plaintiff testified that she was on her way home from a picnic, and at the time of the accident was sitting on the right side of the car, near the corner, in front, and that after the collision she was helped home by a stranger, one Walzer. She is corroborated to some extent *655by Walzer, who is an apparently disinterested witness, and who at the time of the accident was a total stranger to her. He testifies that he was riding upon one of defendant’s cars, *going*in the same direction, behind the car on which plaintiff testifies she was riding. The collision occurred at the Maspeth depot, from which depot the car on which Walzer was riding was only half a block away when the accident occurred. The car on which he was riding stopped and he got off and walked to the place of collision, where he saw the plaintiff sitting on the curb; she had no hat on, was bleeding from her head and arm and holding a handkerchief to her face. He inquired where she lived, and on being informed assisted her to her home. A physician was called, who reached the house at eleven o’clock — about an hour and a half after the accident. He testifies that his examination of plaintiff disclosed contusions and bruises on the left side of the back of her head, swellings and abrasions about the shoulder, arm, side of the body, hips and side of the leg, and that she was *suffering from severe*shock; was partly unconscious and pale; some of her teeth were out, mouth was swollen and bleeding. He treated her for nine months, visiting her the first month about every day and, at intervals, several times during the night; the second month every second or third day and thereafter about once a week. She was confined to her bed for about two months. Her husband was away from the city at the time of the accident, returning two days thereafter, at which time he testifies she was in bed where she remained for seven weeks, unable to do any work. Ho evidence was given by the defendant with the exception that one of its employees was called and testified to an unsuccessful attempt to secure by consent a physical examination of plaintiff some two years after the accident. The jury found for the defendant, whereupon the plaintiff moved to set aside the verdict and for a new trial, which was denied and exception taken.

The defendant contends that the jury was justified in rejecting the plaintiff’s testimony. It is urged that her story of the accident and how she received her injury, with the attendant circumstances, is incredible and unworthy of belief. That the plaintiff was seriously injured, and at the very time and place of the collision, is not controverted. Her statement that no employee of the company or ambulance officer came to her or offered her any aid, does not mili*656tate against her. It appears that others were injured, and it is not at all improbable that the attention of the defendant’s employees and the ambulance officers was being given to others during the short interval intervening between the time when the accident occurred and when plaintiff started for her home. Her name was given to a policeman who asked for it. Section 873 of the Code of Civil Procedure afforded the means of securing a physical examination of plaintiff if desired, without reference to the wishes or consent of her attorney. The mere fact that the plaintiff, whose testimony was corroborated in all material respects by disinterested witnesses, except as to the single fact that she was on the car at the time of the collision, was interested in the event of the action was unimportant in view of the fact that there was no conflict in the evidence or any circumstance from which an inference against her being on the car and receiving her injuries while such passenger, could be drawn. *(Kelly*v. *Burroughs,*102 N. Y. 93.) She was not impeached and there is nothing in the record to impeach her credibility. Under such circumstances the jury were not at liberty to disbelieve her simply because she was a party and interested in the event of the action. *(Denton*v. *Carroll,*4 App. Div. 532; *Van Nostrand*v. *Hubbard,*35 id. 201; *Spring*v. *Millington,*44 Misc. Rep. 624; *Trudden*v. *Metropolitan Life Ins. Co.,*69 App. Div. 392; *Cunningham*v. *Gans,*79 Hun, 434.) “ And whenever it does so, then the verdict rendered is not such as the law recognizes and will not receive the sanction of the court when brought under review. It would be a discredit to the administration of justice and tend to bring it into disrepute if any other rule were permitted to prevail.” *(Littlefield*v. *Lawrence,*83 App. Div. 327, citing *McDonald*v. *Walter,*40 N. Y. 551; *Brown*v. *Foster,*1 App. Div. 578.)

The verdict was against the weight of evidence, and it follows that the judgment and order must be reversed.

The judgment and order should be reversed and new trial granted, costs to abide the event.

Woodward, Jenks, Hooker and Miller, JJ., concurred.

Judgment and order reversed and a new trial granted, costs to abide the event.