Opinion
May 20, 1927.
Appeal from Supreme Court of Schenectady County.
Whalen, Murphy, McNamee Creble [ Sherman A. Murphy of counsel], for the appellant.
Leary Fullerton [ Walter A. Fullerton of counsel], for the respondent.
The plaintiff, a trespasser, riding on a freight train of defendant, claims to have sustained injuries by reason of a wanton assault made on him by defendant's employees.
He alleges in his complaint that "boiling hot water" was turned on him from a hose. The testimony of plaintiff is somewhat contradictory. He says at one point that the fireman came up on the coal and "he throw the hot water;" and again he indicates that the fireman did not come in sight at all, but scalded him by "pulling the rope" and discharging the hot water from a "pop-off valve" near which he was sitting. This is quite obviously imaginative, for he could not see the fireman either in the cab or tender to tell what he was doing, and he seems to have abandoned the theory that he was deluged from a hose.
At the time he claims to have been scalded plaintiff was seated on the top of the water tank behind the coal. It appears that there was a condenser near to which the plaintiff was seated. Into this led a pipe containing steam and hot water from an exhaust near the head of the boiler. This would at times overflow on the tank, drenching it. The plaintiff was no doubt scalded, and it seems probable that it came from the accidental overflow from the condenser.
The plaintiff's story, contradictory in its details, of callous inhumanity resulting in his injuries, seems incredible. There is no corroboration. The testimony of the entire train crew, the circumstances and probabilities, all contradict it. There are at times assertions of fact in litigations that over-tax "the credulity of a person of ordinary judgment." ( Garten v. General Accident, etc., Corp., Ltd., 206 App. Div. 154, 156; Cantor v. National Surety Co., 208 id. 370, 373.) The claim made here seems to fall readily into that class. ( Carmody v. N.Y.C. H.R.R.R. Co., 146 App. Div. 400.)
We think the judgment should be reversed on the facts as against the weight of evidence and a new trial granted, with costs to appellant to abide the event.
COCHRANE, P.J., VAN KIRK, HINMAN, McCANN and DAVIS, JJ., concur.
Judgment reversed on the facts as against the weight of evidence and new trial granted, with costs to the appellant to abide the event.