
    Charles H. Hunter, Resp’t, v. The New York, Ontario & Western R. R. Co., App’lt.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed July 18, 1890.)
    
    ^Negligence — Master and servant — Railroad brakeman.
    Plaintiff was a brakeman employed, by defendant, and was on top of a car eleven feet two inches high as it approached a tunnel, which was twenty feet high at the entrance, but which had a brick arch fifteen feet nine inches high, commencing about 200 feet from the entrance. Plaintiff testified that as he entered the tunnel he rose up to go to another brake and remembered nothing after that. He was found in the tunnel with his leg cut off and a cut on his head. Held, that a verdict in his favor would not be disturbed.
    Appeal from judgment in favor of plaintiff for $8,000, entered ■on verdict of a jury.
    Action for personal injuries alleged to have been caused by defendant’s negligence. Plaintiff was a brakeman in the employ of ■defendant. After passing through a tunnel he was discovered to be missing, and was found in the tunnel with one leg cut off and a cut on his head. ' The remaining facts appear in the opinion.
    
      John B. Kerr ( Wm. Vanamee, of counsel), for app’lt; T. A. Read, for resp’t.
   Dykman, J.

The plaintiff in this action was a brakeman in the employ of the defendant and received injuries while passing through a tunnel. As originally excavated, the tunnel was twenty-six feet wide and twenty feet high from the ties to the roof,.

Some years after the construction of the road there was a brick arch built in the tunnel, commencing about two hundred feet from its west portal and extending eastward about eighty-five feet, which reduced the space to about fifteen feet nine inches from the top of the rail to the center of the arch.

When the plaintiff was injured he was on the top of a box car eleven feet two inches high above the rails, and it was his theory upon the trial that his head came in contact with the arch as he went into the tunnel from the west and he was knocked off of the car, and thus sustained his injuries.

Upon the first trial of the cause, the plaintiff testified that he-was in a sitting posture on the top of the box car and remembered nothing after he entered the tunnel, and when the cause reached the court of appeals that court decided that it was physically impossible for the plaintiff to receive his injuries in that manner. 116 N. Y., 615; 27 N. Y. State Rep., 729.

Upon the second trial, however, the plaintiff swore he rose up as he entered the tunnel to go on the top of the car to another brake, and that he remembered nothing after that. That evidence, if true, avoided the difficulty which caused the reversal of the judgment by the court of appeals, and whether it was true or false was a question for the determination of the jury. It was not, and could not be, contradicted, and it was not impossible or impracticable. It might be true, and the jury found it was so. He said he was not asked on the first trial whether he stood up, and he says he then testified that the tunnel looked as though he could stand up and go through without any trouble.

It does not seem to be a case for the interposition of an appellate tribunal. In the place, and performing the functions of the jury, we might have reached a different conclusion, but that consideration does not justify our interference with the verdict

The verdict is not contrary to evidence or against the prepon-' derance of the testimony, but is entirely supported and justified by the evidence. If the testimony of the plaintiff commanded the respect and received the belief of the jury, as it did, that is sufficient to justify the verdict.

The judgment and order denying the motion for a new trial should be affirmed, with costs.

Pratt, X, concurs.  