
    John J. Simpson, Jr., Resp’t, v. Brooklyn Heights Railroad Company, App’lt.
    
      (Brooklyn City Court, General Term,
    
    
      Filed October 28, 1895.)
    
    Heguigence—Question fob juby.
    The question of negligence and contributory negligence was held, under the facts of this case, to have been properly submitted to the jury.
    Appeal from a judgment in favor of plaintiff.
    
      Morris & WMtehouse, for app’lt; Dailey, Bell & Crane, for resp’t.
   Osborne, J.

Plaintiff obtained a verdict against the defendant for damages for injuries sustained by him through the negligence of the defendant. We are now asked to reverse the judgment in favor of the plaintiff, and the one point presented to us on this appeal, as ground for a reversal, is that the learned trial judge erred in refusing to grant the motion of the defendant’s counsel, at the close of all the evidence, to dismiss the complaint, on the grounds that plaintiff had failed to establish negligence on the part of the defendant, that plaintiff was guilty of contributory negligence, and that the preponderance of evidence was in favor of defendant, and also in refusing to direct a verdict for defendant.

The case made by plaintiff was to the effect that on the afternoon of October 9, 1893, he, in company with others, was riding in a wagon along Myrtle avenue, between Ridgewood and Richmond Hill, on their way back to Brooklyn, on which avenue defendant operated cars propelled by dummy engines. The party were driving on the right-hand track, and, just before reaching the foot of a hill some feet long, they were noticed by signal of the approach of a 'train in their rear. The wagon was driven over to the left-hand track to allow the train in the rear to pass, and at that time there was no train in sight approaching on the left-hand track; and it was further proven that the road on the right of the right-hand track was rough and unfit for travel. After the train on the right-hand track had passed, the driver of the wagon proceeded to turn back into the right-hand track; and, as he was turning back, a dummy with cars attached came in sight on the left-hand track, proceeding down the hill at a high rate of speed, and the tail end of the wagon was struck by one of the water tanks of the dummy, which projected about fourteen inches over the rail, throwing the plaintiff from the wagon, and inflicting the injuries complained of. Defendant’s story was 'that, as the dummy engine, going at the rate of ten miles an hour, approached the Wagon, which was being driven on the roadway to the left of the track, the driver of the wagon suddenly turned to the right, and" attempted to cross the track about ten or twelve feet in front of the engine, and that, although the engineer stopped his engine as quick as he could, he was unable, in spite of his efforts, to avoid a collision, and he struck the rear part of the wagon.

There was no such preponderance of evidence in favor of the defendant as would have justified the trial judge in taking the casa from the jury. It was plainly his duty to leave to the jury to determine which side was telling the truth; and, in doing so, the jury was charged that, if the defendant’s statement of the way the collision occurred was the true one, the plaintiff could not recover. The jury, by their verdict, have found that plaintiff’s statement as reasonable ground for interfering with the conclusion arrived at.

Judgment and order denying motion for a new trial must be affirmed, with costs.  