
    Charles H. Miller, Respondent, v. Uvalde Asphalt Paving Company, Appellant.
    Second Department,
    October 12, 1909.
    Negligence—injury to passenger on car by curbstone lying near track — liability of paving company — contributory negligence.
    While in a civil action circumstantial evidence must be such as to lead fairly and reasonably to the conclusion sought to he established, it need not exclude every other hypothesis that can be suggested.
    Where in an action by one who was injured while on the running hoard of a car by a curbstone lying beside the track, it appears that the defendant hired the cars by which the stones were brought to the scene of the accident and that they were there unloaded by men in its employ, the jury may find the defendant responsible for the presence of the stones, although the contract for laying the curbing was made between the city and another company.
    The rule that a passenger standing on the running board of a car in an action against the railroad might be guilty of contributory negligence as a matter of law, does not apply where the action is against another party.
    Evidence examined, and held, to justify a finding that the plaintiff was injured by one of the defendant’s curbstones and that the defendant was negligent.
    Appeal by the defendant, the "Uvalde Asphalt Paving Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 1st day of March, 1909, upon the verdict of a jury for $800, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.
    
      
      Leo G. Rosenblatt, for the appellant.
    
      Herbert N. Warbasse, for the respondent.
   Burr, J.:

The defendant introduced no evidence. It devolves upon us, therefore, to determine whether the plaintiff established, first, the proximate cause of his injury; second, that the defendant’s negligence is responsible for the existence thereof, and third, that his own negligence did not contribute to the injury complained of.

On the 20th of June, 1904, the plaintiff was a passenger in an open trolley car which was running through Church avenue. As it approached East Thirty-fourth street he signaled to the conductor and stepped down with liis right foot to the running board, his left foot remaining on the floor of the car. While in that position something struck his right foot, which projected beyond the edge of the running board three inches, with such violence that the sole of his shoe was almost torn off and he was thrown headlong in to, the street, sustaining serious injury. While there is no direct evidence as to what the object was with which his foot came in contact, there was evidence that about two weeks before the accident some large blue-stone curbing had been deposited in the roadway at the point where the accident happened and “all along between Thirty-third and Thirty-fourth Street; ” that these stones were about five feet long, two feet wide and six or eight inches thick; that they were placed so near to the track and in such a position and were of such a height (in some instances one being placed on top of the other) that the running board of a passing car barely escaped coming in contact with them.

We think that the jury were justified in determining that it was one of these stones which was struck by plaintiff’s foot. While it is true that' in order to establish a material fact in a civil action by circumstantial evidence the circumstances must be such as to lead fairly and reasonably to the conclusion sought to be established, it is not necessary to exclude every other hypothesis that can possibly be suggested. It is enough if it exclude any other hypothesis which can fairly and reasonably be deduced from the evidence. It is certain that plaintiff’s foot came in contact with some object extraneous to the car and in close proximity to it. It is possible, as suggested by counsel, that some one may have thrown a stone and struck the plaintiff, or that some careless workman may have left a tool near the track, or that if it was a stone with which plaintiff’s foot came in contact it may not have been one of the curbstones above referred to. But there is not the slightest evidence that a stone ivas thrown, or a tool left near the track, or that there were any loose stones in the street except the curbstones. For the jury to have found that the accident resulted from any such cause would have been to base a verdict upon surmise and conjecture. Where the evidence warrants the finding of an obstruction in the street of such a character and in such a position that it may be reasonably found that it was the cause of an accident, in the absence of evidence from which any other thing may equally well be found to be the cause thereof, a jury are justified in attributing such accident to the presence of such obstruction, even though there may be no direct evidence respecting the same. The jury were also justified in finding that the defendant was responsible for the presence of the curbstones in the street. The evidence was uncontradicted that the defendant hired thé fiat cars by which the curbstones were transported to the scene .of the accident ; that they were unloaded from the cars by men employed by the defendant and under the direction of its manager, who was told by the president of the defendant to “go ahead and do the work.” It appeared that the contract for curbing and laying the sidewalk on Church avenue was in writing and made between the city and the National Trading Company, of which one Grening- was the president. In view of the uncontradicted facts above referred to, if it was error to permit the witness Grening to testify that he was setting the curb for the defendant company, it was harmless error, for the negligence consisted in unloading the stones from the cars and leaving them in a dangerous position in the street, and not in curbing or laying the sidewalk. In addition to that, the evidence would sustain a finding that the National Trading Company was the agent of the defendant in doing the latter work. (Lilley v. Uvalde Asphalt Paving Co., 127 App. Div. 310.)

Upon the question of plaintiff’s contributory negligence we think also that the question was one for the jury. It did appear that the plaintiff was-sitting in the rear of a car which was not crowded, and that after signaling the car to stop and before it had checked its speed he placed his foot upon the running hoard preparatory to alighting. It also appeared that he knew that work was being done upon the street in the immediate. neighborhood of the place of the accident, and that he had seen curbstones lying in the roadway. But he says that he did not notice them at the particular place where he was hurt. Even if as against a railroad company the act of a passenger in getting upon the running hoard of a car when there was no necessity of doing so, in consequence of which he was injured, might he such contributory negligence as would constitute a defense as matter of law'' because of the duty of the passenger in his relation as such to the railroad company, the same rule does not apply wdien the action is against another party. (Connolly v. Knickerbocker Ice Co., 114 N. Y. 104; Mills v. Woolverton, 9 App. Div. 82.) The learned trial justice very fully and carefully instructed the jury as to the law of contributory negligence as applicable to this case, and no exception was taken to his charge in this regard.

The judgment and order appealed from should be affirmed, with costs.

Present — Jenks, GaynoR, Burr, Rich and Miller, JJ.

Judgment and order unanimously affirmed, with costs.  