
    Charles H. Brundage, Respondent, v. Fonda, Johnstown and Gloversville Railroad Company, Appellant.
    Third Department,
    June 18, 1908.
    Railroad — injury in collision — weight of evidence.
    The plaintiff, a passenger on an,electric car; was injured by a collision with a car running in the opposite direction upon the same track. Evidence examined, and held, that a verdict for the plaintiff could not be sustained.
    Appeal by the defendant, the Fonda, Johnstown and Gloversville Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Montgomery on the 1st day of October, 1907, upon, the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 25th day of September, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles S. Nisbet, for the appellant.
    
      George M. Albot, for the respondent.
   Cochrane, J.:

The defendant operates an electric railroad. Two of its cars running in opposite directions on the same track collided. ■ The track, extends easterly and westerly. Plaintiff was a passenger on the west-bound car and was injured.

The portion of the track under consideration was protected by signal devices at each end to warn operators of cars approaching from opposite directions. By such device when a car entered upon the track in question a lever was operated by the conductor or motorman, which displayed a light at each end of the track. Such lever could be operated from the car. The light constituted a notice to an approaching car that another car was already on the track. If no light was visible to the crew of an approaching car it was notice that the track was clear, and after setting the signal and were at liberty to proceed. the light to indicate their presence on the track they

Ño criticism is made as to the inadequacy or insufficiency of this signal device. The jury has found negligence in the operation of this signal by one or moré of the defendant’s employees.

It is not difficult to dispose of. this case without finding any substantial conflict in the evidence so far as the question of defendant’s negligence is concerned. And if an explanation of the accident can be given in harmony with all the evidence such explanation should be accepted rather than one which involves a conflict of testimony and untruthfulness on the part of witnesses.

The motorman of the west-bound car on which plaintiff was' a passenger testifies that as he approached the easterly signal. it was dark, indicating that the track was clear; that he slackened the speed of his car and operated the lever, with the result that a light was displayed, and that he then proceeded westerly until the collision occurred. In this statement he is corroborated by two passengers on his car, who were called as witnesses by the plaintiff, and who testified thát the car slackened its speed, and substantially that the motorman operated the lever. Such is the testimony as to what occurred at the easterly signal.

A witness by the name of Jones, who'boarded the east-bound car as a passenger at the place of the westerly signal, and who has no connection with the defendant, testifies that as that car was approaching that signal he changed it and then ran along and jumped on the car. What his motive or impulse was for interfering with the ■ signal is not important, because there is no contention that he was acting with the authority or knowledge of the defendant. He does " not intelligibly- explain what effect his action had on the light. He probably does not know. The conductor of that car testifies that, observing no light in the signal, he operated it so as to display the light, and the car proceeded. He did not know of the-previous ■action of Jones, who had doubtless by his improper interference extinguished the light and thus led the conductor to think that the track was clear. . •

Up to this point there is not the slightest difficulty. If this Were all the evidence, every one would unhesitatingly say that the accident was due solely to the meddlesome and unwarranted act of Jones for Which defendant was in no way responsible." The learned trial justice distinctly charged the jury that if the testimony of Jones were true the plaintiff could not recover.

But plaintiff produced a witness named Argersinger, who was a passenger on the west-bound car, sitting on the rear platform facing backward, and who testified that after that car passed the easterly signal he observed that the light was not displayed. This apparently is in conflict with the testimony of the other witnesses as to the fact that the motorman of that car operated the signal, unless it be assumed that a light was displayed when he approached, and that he so operated the signal as to extinguish it, an assumption which is quite unreasonable! But there is not necessarily any conflict in the testimony, Those two cars approached the opposite signals at approximately the same moment of time. The westbound car arrived at the easterly signal one minute later than the east-bound car was due at the westerly signal. It is unquestioned that both cars were practically on time. It is obvious, therefore, that if the motorman of the west-bóund car had displayed the signal in the precise manner as claimed by him, and Jones, a moment thereafter, had changed the other signal in the precise manner as testified by himself, the easterly light would have been extinguished without the motorman’s knowledge, and the testimony of the passenger riding backwards on the rear platform that no light was displayed would also be true. There is no improbability about this, but on the contrary such a sequence of events coincides with all the evidence, and must be accepted as the correct theory of the accident rather than some other theory inconsistent with some of the evidence.

. There is a very strong presumption in favor of the testimony of Jones. With the utmost candor he assumes responsibility for the accident. Bo reason is apparent why he should do so except that the truth requires it of him, and if truthful there can scarcely be any questiqn that the accident was due to his act; and if, as we have seen, the testimony of Argersinger and Jones can be harmonized this judgment is clearly wrong.

The judgment and order must be reversed and a new trial granted, ■ with, costs to the ajipellant to abide the event.

All concurred; Kellogg, J., in result.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  