Hessler v. Brenner

¶1I cannot concur to affirm this dismissal, since it professed to be based solely on the unsatisfactory testimony of the patrolman Schwab, who had rescued plaintiff after she had fallen from the street car, and had been struck by Brenner’s automobile. Subjected to a three-sided examination, the patrolman gave varying versions of the occurrence, with estimates of the distances from the automobile to the car tracks, that were discrepant though not irreconcilable. But such yielding to suggestions on cross-examination did not destroy or cancel the original testimony of that witness. While he had thus given three or more versions, variant in details, such discrepancies were nevertheless of fact, and did not make a case for dismissal. That one of such estimates of distance might be favorable to the respondent, did not take the determination of the real situation from the jury. (Cannon v. Fargo, 222 N. Y. 321.) Hence I vote for reversal and a new trial.