
    William M. Johnson, Appellant, v. The Brooklyn Heights Railroad Company, Respondent.
    Second Department,
    June 4, 1909.
    Railroad — negligence — improbable testimony — nonsuit.
    Where in an action by a passenger for injuries caused by the negligence of the railroad company, on whose car he was, the plaintiff’s story, although improbable, is not incredible as. a matter of law, it is error.to grant a nonsuit at the close of his case.
    Appeal by- the plaintiff, William H. Johnson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 9th day of December, 1908, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s evidence on a trial at the Kings County Trial Term.
    
      Edward J. Byrne [Stephen C. Baldwin with him on the brief], for the appellant.
    
      D. A. Marsh [George D. Yeomans with him on the brief], for the respondent.
   Miller, J. :

This is an' appeal from a judgment entered on a nonsuit granted at the close of the. plaintiff’s case. The action is for negligence. The plaintiff’s story is that he was a passenger on the rear platform of one of the bridge cars and that, at the place where the cars let go of the cable, the bumper or platform of the car behind the one he was on over-rode the platform upon which he was standing, catching and crushing his foot. The plaintiff testified: “We came across the bridge until they let go of the cable on this side. The forward cars let go first. The last car hung to it until it gave two or three very hard, violent jerks. The last platform crowded over the top of the one that I was on, catching my foot and jamming it, striking it twice real hard.” The plaintiff’s story seems improbable, but it cannot bé said that it was incredible as a matter of law. If the accident happened as claimed by the plaintiff, the defendant was called upon to explain it. If it was impossible, as the defendant now contends, evidence should have been presented to show that. From our knowledge of the operation of these trains, we cannot say that the accident could not have happened. The truth of the plaintiff’s story was for the jury.

The judgment is reversed.

Hirsohberg, P. J., Woodward, Bhrr and Rich, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event.  