
    Mary D. Howell, as Administratrix, etc., of James Howell, Deceased, Appellant, v. The New York Central and Hudson River Railroad Company, as Lessee of the Rome, Watertown and Ogdensburg Railroad Company, Respondent.
    
      Negligence — the case, where there is evidence to sustain the cause of action, must be submitted to the jury—a nonsuit, granted, after a verdict for the plaintiff, set aside.
    
    In an action to recover damages resulting from the death of the plaintiff's intestate in consequence of the alleged negligence of the defendant, a motion for a nonsuit was made at the close of the plaintiff’s case and at the close of all the evidence. The court reserved the motion and submitted certain specific questions of fact to the jury. After the jury had rendered a verdict in the plaintiff’s favor, the court granted the motion for a nonsuit.
    
      The evidence given on behalf of the plaintiff was sufficient; if believed, to support the verdict, but much of it was so improbable and so contrary to some of the established facts and circumstances as to render it almost incredible.
    The court, in granting the motion for a nonsuit, based its decision in part upon the ground that the verdict was against the weight of evidence.
    
      Held, that the order granting the nonsuit should be reversed, as under the cir- . cumstances the plaintiff was entitled to have the case submitted to the jury, but that as the Appellate Division was not satisfied with the verdict it would not reinstate the same but would order a new trial.
    Williams, J.> dissented.
    Appeal by the plaintiff, Mary D. Howell, as administratrix, etc., of James Howell, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oswego on the 14th day of May, 1901, upon an order made at the Oswego Trial Term and entered in the said clerk’s office on the 13th day of May, 1901, granting the defendant’s motion for a nonsuit, a jury having rendered a verdict in favor of the plaintiff for $2,000, and also from the said order upon which such judgment was entered. ' .
    James Howell, the plaintiff’s husband and intestate, was a man about seventy years of age, who resided in the city of Oswegó, and at the time of his death was employed by the city as a street cleaner. He lived upon Albany street, a few blocks distant from the defendant’s tracks, and at about half-past six o’clock in the morning of July 22, 1899, he started from his home with the intention of entering upon the discharge of his duty in another part of the city.
    Hot far from Albany street is another street known as East Willow street, which crosses the defendant’s tracks at nearly right angles, and then continues south a short distance, where it turns abruptly to the west and at a point about 400 feet from East Willow street crosses the' tracks again, and is known at this crossing as West Willow or Tenth street.
    The record does not satisfactorily disclose precisely what course the intestate took to reach his destination, but when he arrived at the defendant’s tracks' and attempted to cross the 'same he was struck by a locomotive attached to a passenger train and almost instantly killed. This action is brought by the plaintiff to recover damages upon the ground that her intestate’s death was due solely to the negligence of the defendant in the management and running of its trains.
    At the close of the plaintiff’s ease a motion was made by the defendant’s counsel for a nonsuit, which-was denied by the court, to which ruling an exception was duly taken. A similar motion was made at the close of the entire evidence, whereupon the learned trial justice stated that he proposed to submit certain specific questions of fact to the jury and, after taking their verdict thereon, to entertain and reserve the motion for a nonsuit for further consideration. This disposition of the motion was agreed to by counsel, and the case was thereupon submitted to the jury, which returned a verdict in favor of the plaintiff of $2,000.
    Thereafter the learned trial justice, after mature deliberation, handed down a decision granting the defendant’s motion for a non-suit, and from the order granting the same, as well as from the judgment entered thereon, this appeal is brought.
    
      William Kennedy, for the appellant.
    
      Henry Purcell, for the respondent.
   Adams, P. J.:

The specific questions submitted to the jury were as follows:

1. Was the death of the plaintiff’s intestate occasioned by collision with one of the defendant’s trains in the city of Oswego, on July 22, 1899 ?

2. Did such collision occur as the plaintiff’s intestate was crossing Utica street, at a point where such street is intersected by East Willow street?

3. Was such collision caused by the negligence of the defendant ?

4. Was the plaintiff’s intestate free from negligence which caused or contributed to cause such collision ?

Each of these questions was answered in the affirmative, and the fifth, which related entirely to the question of damages, was answered by assessing the amount thereof at the sum of $2,000.

It was conceded on all hands that the death of the plaintiff’s intestate was caused by a collision with one of the defendant’s trains at the time and place specified in the first question, and it, therefore, follows that no exception can be taken by either party to the finding of the jury in respect thereto; but as to the matters, involved in the three succeeding questions a sharp issue of fact was presented to the jury. Upon the part of the plaintiff it was contended, and evidence to support such contention was. given by at least three witnesses, that when the plaintiff’s intestate reached East Willow-street he found a freight train passing to the east; that he stood ■upon the crosswalk near a telegraph pole until this train had passed, and then, after looking in both' directions, proceeded to cross the defendant’s tracks, when he was struck by a passenger train, which was proceeding at a comparatively high rate' of speed in a westerly direction, upon the track north of the one upon which the -freight train was moving to the east. These same witnesses also gave evidence tending to prove that no bell was rung or whistle sounded upon the locomotive attached to the passenger- train until it reached the crossing in question.

Upon the other hand, a large array of witnesses testified that Howell was walking easterly upon the defendant’s tracks between West and East Willow streets; that lie was about midway between these two streets when the freight train overtook him; that he thereupon stepped onto the adjoining track,, apparently for the purpose of allowing the freight train to pass by, and that while so standing upon that track he was struck by the passenger train coming from the east. Many of these witnesses likewise testified that the bell of the locomotive was ringing and had been ringing ever since the train left the Oswego station, but it seems to be conceded by all the defendant’s witnesses, including the engineer of the passenger train, that no whistle was blown until the danger or emergency signal was given at the crossing.

The learned trial justice, in granting the motion for a nonsuit, placed his decision, in so far as at least two of .the questions submitted to thé jury were concerned, upon the ground that the verdict was against the weight of evidence, and with'this conclusion we have no fault to find'

The plaintiff’s principal witnesses were not, by their own admissions, of such a character as to commend them to very favorable consideration, and the evidence given by them- was, much of it, so improbable and so contrary to some of the established facts and circumstances of the case as to render it well nigh incredible. ¡Nevertheless, if that evidence can be believed, it establishes the plaintiff’s cause of action and supports the verdict of the jury. It follows, therefore, that however improbable it may have seemed to the learned trial justice, it was for the jury, in the first instance, to determine what reliance, if any, should be placed upon it. (Williams v. D., L. & W. R. R. Co., 155 N. Y. 158.)

It is true that even in a case where the evidence is sufficient to sustain it, a verdict may be set aside and a new trial ordered where the court is satisfied that the verdict is against the weight of evidence, yet it has been recently decided, and the rule, as at present settled, seems to be that where there is any conflict whatever in the evidence a verdict cannot properly be directed, the reason for this rule being that the direction of a verdict determines substantive and existing rights, while the granting of a new trial involves merely a matter of remedy or procedure, which rests very largely in the discretion of the court. (McDonald v. Met. St. Ry. Co., 167 N. Y. 66.)

In view of the decision last referred to, which has been rendered since the trial of this action, we feel constrained to reverse the judgment and order appealed from, but inasmuch as we are by no means satisfied with the verdict of the jury, we do not deem it proper to reinstate the same, preferring rather to avail ourselves of the power which resides in this court to direct a new trial. (Code Civ. Proc. §1317.)

The judgment and order should be reversed and new trial ordered, with costs to appellant to abide the event.

McLennan, Spring and Hiscock, JJ., concurred; Williams, J., dissented.

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