
    BARTHOLOMEW DESMOND, Appellant, v. ERNEST ROSE, Respondent.
    
      Contributory negligence—testimony susceptible of construction either for or against it not sufficient to rebut a presumption of its existence—where such diversity exists in testimony of single witness, complaint should be dismissed.
    
    Before Curtis, Ch. J., and Sedgwick, J.
    
      Decided June 18, 1880.
    Appeal from judgment.
    
      This action was for damages for injury caused by defendant’s negligence. Upon the plaintiff’s closing his case, the defendant moved to dismiss the complaint, on the ground that plaintiff had not given any testimony to show that he had been free from negligence. The motion was granted. By leave, the plaintiff was allowed to testify further in his own behalf. The motion was renewed, and again granted.
    The court at General Term, after a review of the evidence which tended to show contributory negligence on the part of plaintiff, said :
    “We are of the opinion that the learned judge at the trial committed no error in dismissing the complaint. The plaintiff could not make his case without proof that he was free from contributory negligence. If it were clear that the facts, on which, as matter of law, the jury must found a conclusion on this point, were susceptible of a construction that proved negligence equally with the opposite construction, much more, if the opposite construction had a greater weight of testimony, the jury would have no foundation for a judgment that there was no contributory negligence. It .is a matter of law that if one credible witness for the plaintiff testifies to a certain state of facts necessary to the cause of action, and another equally credible witness swears to the opposite,' and there is nothing to turn the scale one way or the other, the facts of the case are not proven. In such a case, however, it is generally left to the jury to say which is the more credible witness. But where the diversity exists in the testimony of one witness, such a consideration has no place.”
    
      A. B. Tappen, for appellant.
    
      A. W. Knapp, attorney, and John McKeon, of counsel, for respondent.
   Opinion by Sedgwick, J. ; Cubtis, Ch. J., concurred.  