
    Daniel Goller, Respondent, v. Fonda, Johnstown and Gloversville Railroad Company, Appellant.
    Third Department,
    January 8, 1906.
    Negligence ■— injury to passenger by flying stóne — verdict hot supported by evidence.
    The plaintiff, while riding through a rock cut on defendant’s ear had his arm broken, as he claimed, by being hit by a flying _ stone weighing six or eight pounds.. . The window was open and protected by a wire screen, the bottom of • which was. about- four and a half inches above the sill, add the top about a foot below the top of the window: At the time of the aceid en t a train was passing in the opposite direction oil a track between that "on which the plaintiff’s car was - moving and the rock cut, the- distance from the nearest part of his car to the surface of the rock cut being about eighteen feet. ' There was evidence that stones had sometimes fallen upon the track from the rock cut. A dent was found on the side of the car near the window where plaintiff sat. There was evidence that there was dirt, on his -arm >such as might have come from the stone. The screen was uninjured and the defendant’s evidence showed, no injury to the car. A companion of the plaintiff testified that after the accident plaintiff hadi said that his elbow extended out of the window, and there were various contradictory statements of plaintiff as to how the accident happened.
    
      Held, tha.t .while the fact that some part of plaintiff’s arm was out of the window did not constitute contributory negligence as a matter of law, and the. questions of the probability and improbability of the accident and of the contributory negligence were for the j ury, the strange nature of the accident as related by plaintiff and the circumstances of the case as shown by all the evidence threw so much doubt upon plaintiff’s version of the transaction that it could not be said that the verdict was fairly sustained by the evidence.
    Appeal by the defendant, the Fonda, Johnstown and Gloversville Eailroad 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 30th day of June, 1905, upon the verdict of a jury for $350, and also from an order entered in said clerk’s office on the 26th day of June, 1905, denying the defendant’s motion for a new trial made upon the miúutes.
    
      C. S. Nisbet, for the appellant.
    
      Henry V. Borst and Matthew Dwyer, for the respondent.
   Kellogg, J.:

The plaintiff’s evidence tended to show that he was riding on one of the defendant’s cars through a rock cut. The car seems to have been the ordinary car, with a wire screen running on the outside of the car across the windows, the bottom of the screen being about four and one-half inches from the window sill and the top about a foot below the top of the window; that after reading a paper he threw it with his right hand out of the window above the screen, and immediately his'left arm, resting on the window sill, was hit by a stone about.the size of a cuspidor and weighing six or eight pounds, and that after he was hit he looked over and saw the stone rolling off on the side of the car between the screen and the window sill. He says the stone came in sideways, but did not enter the car itself. Afterwards, he examined the car and found a piece of wood knocked out of the sill. Immediately after he was hit and made the alarm, his arm was found broken, and a passenger observed dirt Upon his sleeve such as might come from a stone. Between the track upon which he was and the rock cut was a track for cars passing in the other direction, the distance from the nearest part, of his ear to the surface of the rock cut being about eighteen feet, and that rocks at different times had fallen, or rolled down, and bounded from this rock cut .upon the tracks below, and that frequently a watchman was kept there, but none was there at this time. The screen was uninjured, and the defendant’s evidence shows no injury to- the car. The appellant contends that the plaintiff’s version of the accident is physically impossible; arid that the stone could not have- protruded under the screen and injured his arm, and that he could Only have been injured by his arm extending under the screen or over the screen outside of the car. This screen was over the window for the purpose of keeping the passengers and their arms within the car, and to protect them from injury: We cannot say it is a physical impossibility that a stone might, in rolling over this embankment, hit a projecting rock' and bound and describe such a curve in falling that it might protrude into this opening between the screen and the sill so as to break the plaintiff’s-arm. It may be more natural to assume that the arm must have extended under, or over the screen and beyond it, but it not appealing just how far it, extended beyond, whether it was merely the elbow or a part of the arm slightly protruding in the space, under the screen, or the arm extending beyond the Car itself, we cannot say as matter of law, even if some part of the arm was beyond" the surface, of the screen, that '■ it was contributory negligence precluding a recovery. (Francis v. New York Steam Co., 114 N. Y. 380 ; Tucker v. Buffalo R. Co., 53 App. Div. 571 ; affd., 169 N. Y. 589.)

The .questions, then, of the improbability of the- accident happen^ ing in the manner described by the plaintiff and the plaintiff’s contributory negligence were for the jury to consider seriously as questions of fact,,but do.not require a reversal of the judgment as, a matter of law. The plaintiff’s companion swore that immediately after the accident the plaintiff stated that his arm was out of the window, and there are various contradictory statements of the plaim tiff in evidence as to how the accident happened. The strangeness -of the occurrence ah he relates it and the circumstances of the casé as shown by all the evidence throw so much doubt upori the plaintiff’s version of the transaction that it cannot be said tlie verdict' is fairly sustained by tlie evidence. A new trial should, therefore, be granted, with costs, to the appellant to abide tlie event.

All concurred ; Smith and Chase, JJ., in result.

■ judgment and order reversed and new trial granted, with costs to appellant toj abide event.  