
    George Weidinger, Respondent, v. Third Avenue Railroad Company, Appellant.
    
      negligence—wagon struck on a rewr wheel by a street car—what evidence is required to justify the submission of a question to the jury.
    
    The rights of the driver of a wagon seeking to cross the tracks of a street railway at a street intersection, and of a cable car approaching the intersection, are equal.
    In an action to recover damages for personal injuries sustained hy the plaintiff in a collision between the plaintiff’s wagon and a cable car owned by the defendant, a street railway company, evidence that the collision occurred at a street intersection; that the plaintiff’s horses were proceeding at a walk; that, before attempting to cross the tracks, he looked in both directions without seeing a car, and that the wagon was struck upon the rear wheel — thus indicating that the plaintiff was the first to reach the crossing point, and that he was in plain view of the gripman of the defendant’s car for some little time before the accident occurred—is sufficient to justify the jury in concluding that the plaintiff was free from contributory negligence.
    To justify the submission of a question to the jury there must he proof enough ' to sustain the claim of the party upon whom the onus rests, and a charge of the court, in answer to a request to charge that there was no evidence of a fracture of the plaintiff’s leg, “ I will leave that for you, gentlemen; I do not think there is any evidence of the fracture and yet I will leave it for you to determine,” constitutes reversible error, where neither of the physicians testifying was willing to say that there was, or to say more than that there might have been, a fracture.
    Appeal by the defendant, the Third Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 18th day of October, 1898, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 25th day of October, 1898, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      Herbert B. Limburger [Alfred Lauterbach with him on the brief], for the appellant.
    
      J. Stewart Ross, for the respondent.
   Woodward, J.:

The plaintiff in this action was driving an empty brewery wagon on Park avenue, Hew York city,, and while in the act of crossing the tracks of the defendant in One Hundred and Twenty-fifth street, a car under the management of one of the defendant’s servants came into collision with one of the rear wheels of the wagon, causing a sudden start on the part of the team, and throwing the plaintiff to the pavement, causing the injuries for winch he now seeks to recover damages.

■ There was, we think, evidence from which the jury might properly reach the conclusion that the plaintiff in driving upon the tracks of the defendant at a street intersection, was not guilty of contributory negligence. The rights of both parties at street intersections, it has been often determined, are equal; and the fact that plaintiff’s wagon was struck upon one of the rear wheels indicates that he was first to reach the crossing point. As it appeal’s from the undisputed evidence that he was moving at an ordinary walk, it must be evident that he had been upon the crossing, in plain view, some little time before the car reached the point of collision, where the plaintiff had a right to assume that the gripman would have the car in control. These circumstances, taken in connection with the evidence of the plaintiff that he looked in both directions before attempting to cross without seeing a car, are sufficient to justify the conclusion of the jury that the plaintiff was free from contributory negligence. The facts and circumstances are entirely different from those involved in the case of HieJcman v. Hassau Eleehrie Bcoilroad OompcMiy (36 App. Div. 376) in which case the accident did not occur at a street intersection, and the evidence showed a long interval between the time. that the plaintiff alleged that she looked in both directions and the time of the collision; the woman walking deliberately upon the track without any apparent regard for her own safety. > '.....

It seems clear, however, that the learned trial court erred in submitting to the jury the question whether or not plaintiff’s leg was fractured in the accident. The doctors who examined the plaintiff immediately after the accident, and -again after the injured leg had been in a plaster of paris cast for a period of two weeks, would not testify that the leg was fractured ; the nearest approach to evidence upon the question of a fracture was, that there might have been a fracture, and that there- were some symptoms indicating a fracture. Neither of the doctors was willing to give it as his opinion that the leg was fractured, though a persistent effort was made in that direction by counsel for the plaintiff. The attention of the court was •especially called to this point by a request of the defendant’s counsel to charge that there was no evidence of any fracture of the plaintiff’s leg. The learned court in reply said, “I will leave that for you, gentlemen; I do not think there is any evidence of the fracture, and yet I will leave it for you to determine.” If there was no evidence upon this point, and we agree with the learned trial court that there was not, then it was error to leave it for'the jury to. speculate as to the question of a fracture of the leg. In the recent case of Laidlaw v. Sage (158 N. Y. 73, 97) the court say that this court has, in a long line of decisions, uniformly held that, to justify the submission to the jury of. any issue, there must be sufficient proof to sustain the claim of the party upon whom the onus rests, .and that mere conjecture, surmise, speculation, bare possibility or a mere scintilla of evidence is not enough.”

It is possible, of course, that the jury may have disregarded the ■question of a fracture entirely, and that it may have reached a verdict upon the evidence, outside of the alleged fracture; but there is no way in which this fact can be established.

As the defendant may have been prejudiced as to the amount of ■damages by reason of the charge of the court permitting the jury to determine whether there was a fracture or not, the judgment and order appealed from should be reversed, and a new trial granted, costs to.abide the event.

All concurred.

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