
    Cousins, Respondent, v. Third Ave. R. Co., Appellant.
    
      (Supreme Court, General Term, Second Department.
    
    July 2, 1889.)
    Appeal from circuit court, Kings county.
    Action by Phoebe A. Cousins against the Third Avenue Railroad Company.
    Argued before Barnard, P. J., and Dykhan and Pratt, JJ.
    
      Hoadley, Lauterbach, & Johnson, for appellant. M. L. Townes, for respondent.
   Pratt, J.

We see no grounds upon which to interfere with this judgment. The plaintiff’s testimony was believed by the jury. It was sufficient to justify the jurors in finding that plaintiff tripped and fell in consequence of the loose rail which defendant’s own witnesses say they loosed from its place in defendant’s track, acting under defendant’s authority. There was conflict of evidence. Plaintiff was not corroborated by other witnesses with respect to the precise place where she fell. Others located the spot on other tracks. But, assuming the truth of plaintiff’s story, that she tripped over the loose rail, the defendant’s witnesses locate it on defendant’s track. There is no suggestion of a loose rail over which she might have tripped at any other place in the vicinity. Hence the main question was one of credibility of the plaintiff as a witness, and that was clearly for the jury. We have looked, also, at the exceptions, and, taking the whole charge together, we find no fault in it. The alleged misstatement of the evidence by the learned trial judge was called to his attention, and he corrected the error, if any, by referring the jurors to their own memory of the testimony. As to the point on the value of plaintiff’s dress, the cost thereof was in evidence without objection. The question of the competency of this fact as evidence cannot, therefore, be raised. Presumably defendant was satisfied, for some purpose of its own, that the cost should appear. Being thus properly in the case, the cost was some evidence of value, taken in connection with the use to which it had been subjected. We are not inclined to interfere on this exception. Judgment and order denying motion for new trial affirmed, with costs.  