(dissenting):
The only ground presented upon this appeal for a reversal of the order and judgment is that the verdict was against the weight of evidence. The plaintiff swore that he resided in Astoria, and had lived there for eighteen years; was sixty-eight years of age and his business was that of sieve manufacturer; that on the 2d of September, 1893, he was in the city of New York, and after transacting some business in Water street, he went up to Chatham square to go home, and waited on Oliver street at Chatham square for a Second avenue car to come, these cars running to the Astoria ferry. When the car came in sight he hailed the conductor and driver to stop the car. They were both engaged in conversation on the front platform. The car stopped. The plaintiff had two bundles, one in his right hand and the other upon the ground. When the car stopped he put the bundle he had in his right hand into . the second seat from the end of the car; he then took up his other bundle and got his left foot on the platform of the car, and as soon as he got his foot on the car it started; that he could not “ come in so quick in the car,” and then the conductor shouted to him “ Look out for the wagon; ” he did not see any wagon, and was squeezed between the car and the wagon and thrown back, and his hands were squeezed and his shoulder hurt by tumbling down behind. The car then stopped and the conductor jumped down and took him by the hand and lifted him into the car and went on. No horses were attached to the wagon. There was a step running alongside the car; and the plaintiff testified that he had his left foot on the step, and that he got the bundle and wanted to get in when the car started suddenly.
There were only three .persons on the car at the time, the driver, the conductor and one passenger. The driver died before the trial.
*398The conductor testified that the car was going up towards Oliver street passing Chatham square, when the plaintiff came running from the sidewalk behind an ice wagon; that as he stepped upon the car, the car being in motion at the time and going fast, he fell down opposite the ice wagon ; that the conductor was on the. other side of the car, on the west side, about the center of the car. He testified : “T was after strapping up a big curtain that dropped down, and I was going to the tail end of the car when I seen this man running for the car. He deliberately stepped on the board and fell right opposite this ice wagon, and I went to his assistance and assisted him.” He further testified that the plaintiff told him that he had motioned tp the driver to stop, but that the driver did not see him, and that the car was still going on, when the plaintiff fell off. He further testified that the car was abreast of the ice wagon at the time the plaintiff fell; and that about the time the car came to the ice wagon he was on the step.
It is urged upon the part of the counsel for the respondent that this story of the conductor could not possibly be true, because there was no room bétween the step of the car and the wagon for the plaintiff to get on, if the car was abreast of the ice wagon at the time. But it is manifest, upon considering the testimony of the conductor, that this was not his statement. He said that the plaintiff ran' out from behind the ice wagon and that at the time he fell the car was abreast of the wagon, but that when the car reached the wagon the plaintiff was on the step.
The other witness was one Dennis Martin, the driver of a coal wagon. He was on the car at the time of the happening of this accident, sitting on the back seat of the car on "the west side. He-testifies that the man got- on and stood on the step of the car; “ I couldn’t say did he knock against the ice wagon or did he fall down himself, but he "fell down, and after that the conductor picked him up and put him on the car or took his arm getting on the car again. The car had not come to a stop when the plaintiff endeavored to get on ; it was not to a stop; the car was moving at the time he stepped on it. The car was three or four feet above this ice wagon, as nearly as I can remember, when the plaintiff tried to get on.” . The witness states that he gave his name to the conductor after the accident.
*399The defendant also produced a statement of the manner of the happening of the accident signed by the plaintiff. It appears from the evidence of David E. Babcock that he was employed by the ' defendant to look up accident cases, to secure the witnesses and jirepare defenses for the railroad company, and that the plaintiff came to the depot of the railroad company to his office about two weeks after the accident; that the plaintiff told him that he had been injured, and he took out a paper and the plaintiff dictated a statement to him, and he wrote it down as he dictated it; he did not put anything in that paper that the plaintiff did not dictate to him, not a word. He further says .that he handed the statement to the plaintiff after it was written, and that the plaintiff handed it. back to him and told him toread it; and that he did read it to the plaintiff and the plaintiff thereupon signed the statement. . In that statement the plaintiff says that the- car was in motion at the time he attempted to get on. The plaintiff states: “ I didn’t make any statement; a gentleman asked me how the-things was, how things was going on, and I answered him, and he took my answers down. I did not read them. He read that,' and I say that is all correct so far, but you don’t put in that I get thrown down and get my head hurt behind, and he put that in and"read it, and he says, ‘Now sign that,’ and I put my name down. I don’t know what he put down. It might be he put so 'many things in it what I did not say. He read it over once.”
The question involved is whether, upon this condition of the evidence, a verdict in favor of the plaintiff should be allowed to stand. It seems to me that it should not. There is nothing tending to impeach the testimony of the witness Babcock. The plaintiff, after swearing that he made no statement, admits that he did; that he made corrections in the statement; that it was read over to him, and that he signed it as correct. The conductor and the passenger upon the car both agreed that the car was in motion when the plaintiff attempted to board it, and the statement, signed by the plaintiff, corroborates this testimony. It seems- to. -me that, where there are two unimpeached witnesses supported by the written statement of the plaintiff, opposed only by the unsupported testimony of a party to the suit, the verdict in favor of the latter should not be allowed to stand.
It is alleged that a mistake was made in the taking of this state*400ment, in that the plaintiff is made to say that he was a silk manufacturer, whereas he was a sieve manufacturer. But the similarity in the sound of the words is certainly sufficient to account for this discrepancy. There is nothing whatever upon this record to impeach' the integrity of the statement of the witness Babcock, and it is not to be assumed that he was guilty of the gross fraud of pretending to read to the plaintiff a statement which did not really exist. It is much more probable that the plaintiff has, since his visit to the office of the failroad company, become aware how necessary it was for him, in order that he should succeed' in an action against the company, that the car should have stopped.
While verdicts of juries should not be disturbed without good cause shown, in a case like the present, where the weight of evidence is all one way, it does not seem to me that the court should refuse in .the interests of justice to exercise the right which it has to supervise such verdicts.
The judgment and order appealed from should be reversed and a new trial granted with costs to the appellant to abide the event..
Barrett, J., concurred.
Judgment and order affirmed, with costs.