Halfon v. Coney Island & B. R. Co. , 157 N.Y.S. 785 ( 1916 )

PER CURIAM.

The plaintiff has recovered a judgment for the sum of $137 for injuries which she claims she suffered in alighting from a street car operated by the defendant. Her story is corroborated by the testimony of one witness, who was accompanying her at the time of the accident, and is contradicted by the testimony of the conductor, the motorman, and a number of apparently disinterested witnesses. The trial justice resolved this conflict of testimony in favor of the plaintiff.

If the record disclosed that the trial justice had reached his determination solely upon the evidence presented, we should be averse to setting aside his verdict as against the weight of evidence. The record, however, shows that during the trial the trial justice cross-examined the defendant’s witnesses from certain papers, which, from ■the form of the questions, appear to have been statements signed by these witnesses, or statements written out by the defendant’s investigator, and which purport to have been read over to the witnesses. They were never marked for identification, and were not offered in evidence. In the absence of these papers, we cannot determine what weight they may have had in the determination of the trial justice. It seems to us that the record presents a situation analogous to that presented in the case where the jury took into the jury room during their deliberations documents that had not been admitted in evidence.

In the interest of justice, we think that, under these circumstances, especially in view of the apparently strong testimony presented by the defendant, judgment should be reversed, and a new trial granted, with $30 costs to appellant to abide the event.