
    Edward Shortsleeve, as Administrator, etc., of Mary Ellen Shortsleeve, Deceased, Appellant, v. Henry H. Stebbins, Respondent.
    
      Jury — evidence, although considered unreliable by the court, must be submitted to thejur-y—proof as to a death having resulted from an accident.
    
    Although the judge presiding at a jury trial may be impressed with the unreliability of a witness ,the jury are entitled to consider the -testimony of such witness and, in connection with the other evidence in the case, to give it such weight as they may deem proper.
    In an action to recover damages caused by the death of the plaintiff’s intestate, it appeared that, as a result of the alleged negligence of the defendant, the intestate was, on August 2,1899, thrown from a carriage upon her head and shoulders with considerable violence; that the night after the accident she suffered pain in her head, neck and shoulders; that for some time thereafter her husband continued to bathe the sore spots with witch hazel without relieving the pain; that, while attempting to perform her customary household duties, she suffered much pain; that in three or four weeks she was compelled to take to her bed; that on November third a physician was called who attended her from that time until she died; that shortly after the physician was called she gave premature birth to a deformed child; that subsequently she went into convulsions, in one of which she died early in January.
    Her physician testified that, in his opinion, the convulsions resulted from an injury to her spine, and, in answer to a hypothetical question, expressed the opinion that the condition in which he found the intestate was due to the injuries she received at the time of the accident.
    
      Held, that the question whether the accident was the cause of the intestate’s-death was one of fact for the jury.
    Appeal by the plaintiff, Edward Shortsleeve, as administrator, etc., of Mary Ellen Shortsleeve, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Cayuga on the 11th day of November, 1901, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 10th day of October, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.
    This action was brought to recover damages for the death of the plaintiff’s intestate which, it is alleged, was caused by the defendant’s negligence.
    On the 2d day of August, 1899, the plaintiff, with his wife and two small children, was driving in a low, one-horse, top phaeton along the highway leading from the city of Oswego to the village of Minetto. While descending a hill very near the latter place and at a point aboxit 150 feet north of a stone viaduct or culvert the horse gave a start, breaking the whiffletree of the wagon, from which it soon broke' loose,- and the occupants of the wagon were presently thrown to the ground with considerable violence. Mrs. Shortsleeve struck upon her head and shoulders and her two children fell upon her.
    Running along and by the side of and parallel to the highway was a cinder path five feet in width designed for the use of bicycles, and it appears that upon the day in question the defendant and his son were riding their wheels upon this path, and it is alleged that when they reached a point opposite the plaintiff’s wagon the defendant left the cinder path and attempted to pass the plaintiff upon the highway, and that in doing so he ran into or close to the plaintiff’s horse, in consequence of which the horse took fright with the result hereinbefore mentioned.
    Mrs. Shortsleeve died upon the sixth day of January following the accident, and her death, it is claimed, was attributable to the injuries she had previously received.
    Upon the trial a verdict was directed in favor of the defendant, at the close of the evidence, upon the ground that the plaintiff had failed to establish by satisfactory proof any negligence upon the part of the defendant, and from the judgment entered upon such direction, as well as from an order denying the plaintiff’s motion for a new trial, this appeal is brought.
    
      
      Frank T. Miller, for the appellant.
    
      P. P. Morehouse, for the respondent.
   Adams, P. J.:

The evidence of the defendant’s negligence was not altogether satisfactory, and as the law was understood at the time of the trial the learned trial justice was doubtless justified in pursuing the-course he did, provided he was convinced that he would be compelled to set aside a verdict if perchance one were rendered in-favor of the plaintiff. Nevertheless it cannot be said that there-was no evidence of any negligence upon the part of the defendant.. The witness June testified that he saw the accident and that he-observed the defendant come “ straight out of the bicycle path and cut right across the road right in front of the horse so he hit the horse and the horse threw up his head;” that the horse then reared and broke the whiffletree and ran until he reached the culvert, when the occupants of the wagon were thrown out.

Upon his cross-examination this witness admitted that before the trial he had told the defendant’s counsel that he knew nothing-about "the accident, and his evidence was so contradictory and unsatisfactory that the learned trial judge obviously gave' it no-credence whatever. "While we are not prepared to take issue with the trial court upon this particular feature of the case, it is but fair to say that there was some other evidence given which it is claimed tended to support that of this witness.

The plaintiff testified that the defendant left the cinder path, and! while he does not claim that he ran into the horse, he does say that he came in front of him upon his wheel without any warning and so close to his head as to frighten him; and it is conceded that after the accident the defendant voluntarily handed the plaintiff his card, telling him to have his wagon and harness repaired and he would pay for the same.

We think that, however the trial court may have been impressed with the unreliability of the witness June, the jury were entitled to-consider his testimony and in connection with the other evidence in the case to give it such weight as they might deem proper (People v. Chapleau, 121 N. Y. 267; Williams v. D., L. & W. R. R. Co., 155 id. 158; Ten Eyck v. Whitbeck, 156 id. 342); and that, in view of the rule which has been recently established by the decision of the Court of Appeals in the case of McDonald v. M. S. R. Co. (167 N. Y. 70), it was error to withhold the question of the defendant’s negligence from the. jury. This much was expressly conceded by the learned counsel for the defendant upon the argument, but it is now claimed that, even admitting the defendant’s negligence, there is no evidence that it in any wise caused the death of' the plaintiff’s intestate.

This contention, in our judgment, cannot be sustained; for it; appears that the night after the accident Mrs. Shortsleeve suffered pain in her head, neck and shoulders; that her husband bathed the-sore parts with witch hazel; that this treatment was continued night, and morning for some time thereafter without relieving the pain ; that while attempting to perform her customary household duties, Mrs. Shortsleeve suffered much pain; that in three or four weeks after the accident she was compelled to take to her bed; that on the-third day of November a physician was called, who attended her from that time until the day of her death; that shortly after the-physician was called she gave premature birth to a child which was deformed, and that subsequently she went into convulsions, in one. of which she died early in January. These convulsions her physician testified resulted, in his opinion, from an injury to her spine, and in answer to a hypothetical question he also expressed the-opinion that the condition in which he found Mrs. Shortsleeve was. due to the injury she received at the time of the accident.

In view of this evidence we fail to see how it can be claimed that the cause of her death was not a question of fact for the jury, and, therefore, it follows that a new trial must be granted.

Judgment and order reversed upon questions of law only and a new trial ordered, with costs to the appellant to abide the event, this, court having examined the facts and found no error therein.

McLennan, Seeing and Williams, JJ., concurred; Davy, J., not sitting.

Judgment and order reversed and new trial ordered, with costs to-the appellant to abide event, upon questions of law only, the facts having been examined and no error found therein.  