
    Frances Skinner, as Administratrix, etc., of John A. Skinner, Deceased, Respondent, v. The Erie Railroad Company, Appellant.
    
      Railroad—negligence—action for death.
    
    Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Orange on the 35th day of July, 1913, in favor of the plaintiff, and from an order entered in said clerk’s office on the 33d day of July, 1913, denying its motion for a new trial.
   Judgment and order affirmed, with costs. No opinion. Jenks, P. J., Rich and Stapleton, JJ., concurred; Burr, J., read for reversal, with whom Thomas, J., concurred.

Burr, J.

(dissenting): I vote to reverse upon the ground that the verdict is against the weight of the evidence. Defendant is not liable unless the “ pusher engine ” moved forward. All of the direct evidence given by every witness called by the plaintiff or by the defendant is to the effect that it did not move. As against this plaintiff contends that if the head of the train stopped exactly where the witnesses say that it did, and if the pusher engine stopped in the first instance exactly where some of the witnesses say it did, and if the body was found exactly where Taylor and Cook say that it was, the pusher engine must have moved, since otherwise the rear of the caboose and the front of this engine could not have come in contact. The measurement of distances by witnesses under such circum stances, and the exact location of a body after an accident resulting in death, are circumstances about which witnesses may be both honestly and easily mistaken. On the other hand, the engineer and fireman and the other employees of the railroad company could not be mistaken as to whether the engine moved or not. Either it did not move, or they deliberately testified falsely. Positive evidence of a certain character like this, not improbable, and where the witnesses are neither impeached nor their testimony shaken on cross-examination, is not overcome by evidence so uncertain and liable to error as that upon which plaintiff must depend to sustain her verdict. Thomas, J., concurred.  